Molokai Chamber of Commerce v. Kukui (Molokai), Inc.

• Decision Date: 23 May 1995
• Docket Number: Civ. No. 94-00530 DAE.
• Citation: 891 F. Supp. 1389
• Parties: MOLOKAI CHAMBER OF COMMERCE, a Hawaii unincorporated association; Hoolehua Homesteaders Association, a Hawaii unincorporated association; and Hui Hoopakela Aina, a Hawaii unincorporated association, Plaintiffs, v. KUKUI (MOLOKAI), INC., a Hawaii corporation; Kajima Engineering and Construction, Inc., a Delaware corporation; and Kiewit Pacific Co., a California corporation, Defendants.
• Court: U.S. District Court — District of Hawaii

891 F. Supp. 1389

MOLOKAI CHAMBER OF COMMERCE, a Hawaii unincorporated association; Hoolehua Homesteaders Association, a Hawaii unincorporated association; and Hui Hoopakela Aina, a Hawaii unincorporated association, Plaintiffs, v. KUKUI (MOLOKAI), INC., a Hawaii corporation; Kajima Engineering and Construction, Inc., a Delaware corporation; and Kiewit Pacific Co., a California corporation, Defendants.

Civ. No. 94-00530 DAE.

United States District Court, D. Hawaii.

May 23, 1995.

COPYRIGHT MATERIAL OMITTED

Denise E. Antolini, Lea O. Hong, Sierra Club Legal Defense Fund, Inc., Honolulu, HI, for Molokai Chamber of Commerce, Hoolehua Homesteaders Ass'n, Hui Hoopakele Aina.

Henry E. Klingeman, D. Scott MacKinnon, McCorriston Miho Miller & Mukai, Honolulu, HI, for Kukui (Molokai), Inc Mark B. Desmarais, Goodsill Anderson Quinn & Stifel, Honolulu, HI, for Kajima Engineering and Cons., Inc.

Charles W. Gall, Kobayashi Sugita & Goda, Honolulu, HI, for Kiewit Pacific Co.

ORDER DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND CONTINUING MOTIONS IN PART UNDER RULE 56(f)

DAVID ALAN EZRA, District Judge.

The court heard Defendants' Motions on May 1, 1995. David Dezzani, Esq., Peter T. Kashiwa, Esq., Lisa W. Munger, Esq., and Mark B. Desmarais, Esq., appeared on the briefs or at the hearing on behalf of Defendant Kajima Engineering and Construction ("Kajima"); David L. Monroy, Esq., Charles W. Gall, Esq., and Nathan H. Yoshimoto, Esq., appeared on the briefs or at the hearing on behalf of Defendant Kiewit Pacific Co. ("Kiewit"); Randall Schmitt, Esq., appeared on behalf of Defendant Kukui, Inc. ("Kukui"); Denise E. Antolini, Esq., Paul H. Achitoff, Esq., and Lea O. Hong, Esq., appeared on the briefs or at the hearing on behalf of Plaintiffs. After reviewing the motions and the supporting and opposing memoranda, the court DENIES in part and continues in part Defendants' Motions for Summary Judgment.

BACKGROUND

This is a citizens' enforcement action brought by Plaintiffs Molokai Chamber of Commerce, Hoolehua Homesteaders Association, and Hui Hoopakela Aina, three unincorporated associations, under section 505 of the Water Pollution Control Act ("the Clean Water Act" or "the Act"), 33 U.S.C. §§ 1251-1386, against Defendants Kukui (Molokai), Inc. ("Kukui"), Kajima Engineering and Construction Inc. ("Kajima"), and Kiewit Pacific Co. ("Kiewit").

The complaint alleges that Defendants are in violation of the Clean Water Act and applicable state statutes as the result of: (1) their failure to obtain a proper and timely storm water permit before and during construction; (2) their failure to comply with the state's general storm water permit conditions; and (3) their discharges of pollutants into the waters of the United States without a proper Clean Water Act storm water permit. Plaintiffs seek: (1) a declaratory judgment as to all of the violations; (2) issuance of an injunction until the terms of the permit are met; (3) issuance of an injunction requiring specific actions by Defendants and oversight by court-appointed experts; (4) imposition of civil penalties; and (5) attorney's fees and costs.

By their motions,¹ Defendants seek summary judgment, arguing that: (1) the absence of any ongoing violation at the time Plaintiffs filed their Complaint bars Plaintiffs' action; (2) diligent prosecution by state authorities bars Plaintiffs' citizen suit for civil penalties; and (3) work stoppage and permit issuance moot Plaintiffs' claims.

I. The Regulatory Scheme

A. The Clean Water Act

Congress enacted the Clean Water Act in 1972 "to restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. §§ 1251-1386. The Act prohibits discharge of any pollutants into the nation's waters except when specifically authorized under the Act. 33 U.S.C. § 1311(a). Pursuant to section 402(a), National Pollutant Discharge Elimination System ("NPDES") permits can be issued to particular entities, allowing them to discharge limited amounts of pollutants into surface waters. 33 U.S.C. § 1342(a). Section 402(b) also permits each state to implement the Clean Water Act through its own permit program, so long as the program conforms to federal guidelines approved by the EPA administrator. 33 U.S.C. § 1342(b). The EPA administrator has authorized the Department of Health of Hawaii to issue and enforce discharge permits.

The Act subjects applicants for and holders of state NPDES permits to both state and federal enforcement actions for failure to comply with the permit requirements. 33 U.S.C. §§ 1319, 1342(b)(7). Where government enforcement is absent or inadequate, private citizens may bring civil actions under section 505 against any person alleged to be in violation of an effluent standard or limitation. 33 U.S.C. § 1365(a)(1). Section 505 defines an effluent standard or limitation to include, inter alia, the discharge of any pollutant except as provided for in the Act and a violation of a permit or condition the Act. 33 U.S.C. § 1365(f)(1), (6). If a citizen prevails in an enforcement action, the court may enforce the effluent standard or limitation, order injunctive relief, and impose civil penalties. 33 U.S.C. § 1365(a).

In 1987, Congress amended the Clean Water Act to address the threat of pollution carried by storm water runoff into nearby surface waters. Under the amendments, discharges resulting from commercial or industrial activities which disturb more than five acres of land require a permit. Section 402(p), 33 U.S.C. § 1342(p).

B. Federal Regulations

In 1990, the EPA issued final regulations under section 402(p), focusing in part upon construction activities. 55 Fed.Reg. 47990 (November 16, 1990). In issuing the regulations, the EPA noted the potential impact of construction activities upon surrounding surface water:

Even a small amount of construction may have a significant negative impact on water quality in localized areas. Over a short period of time, construction sites can contribute more sediment to streams than previously deposited over several decades.

Id. at 47992. The EPA emphasized the crucial role of planning in order to prevent discharges of pollution from construction sites. Id. at 48034. The regulations require permit applications from potential dischargers of storm water to be submitted 90 days prior to the date on which the discharge is to commence. Id. at 48034. Under the regulations, after October 1, 1992, a NPDES permit is required for any discharge associated with industrial activity and encompassed "construction activity including clearing, grading and excavation activities." 40 C.F.R. §§ 122.26(a)(1), 122.26(b)(14)(x).

Dischargers can comply with the regulations by applying for an individual permit, a group permit, or for coverage under a general permit. 40 C.F.R. § 122.26(c)(1). The regulations require the submission of several types of information in order "to determine whether to issue a permit...." 40 C.F.R. § 122.26(c)(1)(v). Under a general permitting program, the state adopts a general permit in the form of a regulation covering large categories of dischargers who do not generally need specialized permits. For example, Hawaii regulations define "general permit" as "a rule or document that authorizes a category of discharges into state waters from a category of sources within a geographical area." H.A.R. § 11-55-34. Dischargers seeking coverage under a general permit must submit a notice of intent ("NOI") to be covered by the general permit. 40 C.F.R. § 122.28(b)(2).

Under the EPA regulations, general permits must "specify the deadlines for submitting notices of intent to be covered and the date(s) when a discharger is authorized to discharge under the permit." 40 C.F.R. § 122.28(b)(2)(iii). At the state's election, general permits may specify that the discharger is authorized to discharge in accordance with the general permit "either upon receipt of notice of intent by the Director, after a waiting period specified in the general permit, or upon receipt of notification of inclusion by the Director." 40 C.F.R. § 122.28(b)(2)(iv).

C. State Implementation

On October 29, 1992, Hawaii DOH amended its Water Pollution Control regulations to implement the new federal storm water permitting requirements. H.A.R. 11-55. Like all state NPDES permit programs, state-issued general permits must at least meet the federal requirements contained in 40 C.F.R. § 122.28. H.A.R. § 11-55-34.01. The DOH regulations include general permit administrative rules and six general permits. H.A.R. § 11-55-34, et seq. Under the rules, dischargers must comply with "Standard General Permit Conditions" specified in Appendix A, imposing the same obligations on the permittee as the EPA permit. 57 Fed. Reg. 44412, 22. Appendix C provides a general permit for storm water discharges associated with construction activity.

A person seeking coverage under the general permit for discharge associated with construction "shall comply with the NOI requirements of § 11-55-34.08." H.A.R. 11-55, Appendix C, § 3(a). In order to be covered under a general permit, an applicant must submit a NOI "no later than ninety calendar days before the start of activities or discharges." H.A.R. § 11-55-34.08(j). Appendix C incorporates the 90-day requirement:

The developer or operator, normally the general contractor, of a proposed site with storm water discharges associated with a construction activity shall submit a complete NOI no less than 90 days before the proposed construction starting date in order to be covered under this general permit.

Id. at § 1(b). After receipt of a complete NOI:

the director shall notify the NOI submitter in writing whether the proposed activity or discharges is or are covered under a general permit or an individual permit application is required. Notification is complete upon mailing or facsimile transmission.

H.A.R. § 11-55-34.09(a). The general permit for discharge...