“Water regs clog permit process.”
So screamed the bold headline on page one of the January 17, 1994, edition of Pacific Business News. For developers, the news was grim indeed: according to the article, by Steve Jefferson, “More than $1 billion in construction projects are dead in the water, a problem created by new legislation designed to clean up Hawai’i’s waterways.” Rules implementing the legislation, intended to reduce water pollution from construction sites and to meet federal requirements of the National Pollutant Discharge Elimination System, took effect in October 1992. Since then, the Department of Health has had difficulty processing all the permit applications that the new regulations have generated.
Bruce Anderson, deputy director of the Department of Health, was quoted in the article as saying that already 12 violators had been soaked with fines of up to $10,000 per day per violation, with one violator alone having been fined $240,000.
Environment Hawai`i asked Anderson if the information contained in the article was correct. Yes, he said; although he “might have phrased it differently,” the substance of the article was accurate.
But when pressed, the Clean Water Branch of the Department of Health provided the names of just six parties to whom notices of violation had been issued for water pollution related to construction work. Fines “assessed” by the department may well have run into the hundreds of thousands of dollars. At the time of our review of the dockets, however, not a dime in penalties had been collected.
Warp Speed?
To those familiar with the Department of Health’s environmental programs, the issuance of 12 citations in a program that has been in effect for little more than a year would represent a dramatic and welcome turnaround from past DOH practice, which has seen enforcement efforts drag on for years without resolution. Anderson was asked to provide a list of the parties to whom the notices of violation had been issued.
By late January; Denis Lau, chief of the department’s Clean Water Branch, responded with a list of 12 docket numbers and the names of the parties served with the notices of violation. A review of those 12 dockets, however, indicated that six of them concerned violations related to operations of existing facilities (a bulk fuel terminal, two sugar mills, a dairy, a sewage treatment plant, and a shrimp farm) that had exceeded limits set in their point-source (end-of-pipe) discharge permits.
Of the construction-related citations, the file for one docket – that involving Goodfellow Brothers, Inc., and A&B Properties for work at the Kukuiula site on Kaua’i – was not available for inspection at the Health Department’s Clean Water Branch offices at the time of our visit.
Of the five remaining dockets reviewed, three involved violations by contractors working for the City and County of Honolulu. A fourth involved a contractor for the state Department of Transportation. The fifth was a notice of violation issued for work related to the expansion of the Hawai’i Kai sewage treatment plant (a private facility).
The Law
Some of the construction-related violations mentioned in the enforcement files occurred before October 1992, when the DOH’s regulations requiring permits for grading and dewatering at construction sites took effect. In such cases, the notice of violation rests on the state’s sweeping law banning all unpermitted discharges of pollution into state waters (Chapter 342D-50(a), Hawai’i Revised Statutes).
While the Department of Health could have used this law to cite contractors whose activities polluted state waters at any time, not until 1992 – perhaps in anticipation of the new rules going into effect in October – did DOH inspectors apparently place emphasis on construction-related water pollution. Throughout the summer, the Health Department conducted meetings with county and state agencies and some contractors, to make them aware of the need to comply with the new rules. (Among other things, any construction project starting before December 30, 1992, and all ongoing construction projects, would be required to file with the DOH a notice of intent by October 1, 1992.)
In every case reviewed, the notices of violation were issued after repeated site visits by Health Department inspectors. In some cases, the site visits were prompted by tips from residents aghast at the effects of the construction work on nearby water.
Here is a synopsis of the five dockets whose files were provided to Environment Hawai`i:
The Hale’iwa Bypass
State Department of Transportation and Fletcher Pacific Construction Co., Ltd. In April 1992, Fletcher Pacific was driving pilings into the ground near Emerson Road in Hale’iwa, on O’ahu’s North Shore. The pilings were to support a new bridge over the Anahulu River as part of the Hale’iwa bypass road, about a quarter-mile mauka of the old Rainbow Bridge in Hale’iwa. According to the inspector’s report, “pilings for the footing of the bridge were being driven into the stream bank and the excavation of this footing was being dewatered (pumped) into a single, gravel lined and filter-screened pit and then pumped into the Anahulu River.. [T]he resultant discharge caused the turbid, muddy water to spread across the river, covering an area of approximately 100 yards squared.”
The inspector warned an engineer for the state as well as Fletcher’s senior project engineer that this constituted a violation of state water pollution control law. Further discharges, they were told, would result in penalties.
Fletcher dug a second pit for filtering the water, but when a DOH inspector arrived unannounced at the scene four days later, the Anahulu River was still turbid. A third pit was dug, but it, too, was unable to keep muddy water from flowing into the Anahulu. The inspector recommended enforcement action “on at least the first two instances of dewatering,” with the second discharge to be considered “willful.”
More than 11 months after the violations occurred, the Department of Health issued a notice and finding of violation to Fletcher Pacific (but not to the Department of Transportation). The accompanying order sought the following remedies and penalties: a halt further turbid discharges; a description of “corrective action”; and a $30,000 fine.
Fletcher Pacific responded with a request for an administrative hearing. On April 26, 1993, the Department of Transportation, though not named in the enforcement order, also asked the Department of Health for an administrative hearing on the citation.
As of February 1994, no hearing was scheduled.
(Apart from the DOH violations, the Department of Transportation also neglected to obtain a stream channel alteration permit from the state Commission on Water Resource Management in advance of work being done in the Anahulu River and other surface water bodies as part of this project. Not until December 1992 did the DOT apply for the necessary stream channel alteration permits. To resolve the matter of stream channel violations, the DOT agreed to pay $75,000 to the Department of Land and Natural Resources, which would use the money to support a study of streamlife in the Anahulu River.)
Kane’ohe Sewer Line
Okada Trucking Company, Ltd. In August 1992, a Kane’ohe resident called the Department of Health, saying that for the last few mornings, Kane’ohe Bay had been polluted “with mucky brown water and foam.” The pollution was in an area along Kamehameha Highway between Honekoa Street and Lulani Street.
A Health Department inspector dispatched to the site found “an area of about 30 yards out and 200 yards along the shoreline” to be covered with muddy water. The problem was traced to the installation of sewer lines by Okada Trucking Company, which was sending water from the construction site into a storm drain that fed directly into the bay.1
Within two days, Okada had installed a screen to filter the water before it was discharged, which appeared to take care of the problem. On September 18, however, Kane’ohe Bay was again muddy. This time, the muddy water was spilling from a manmade settling pond into which Okada had been pumping water from the construction site. The overflow fed into a storm drain and discharged into the bay. Okada stopped dewatering the site after a DOH inspector notified them of the problem.
On March 15, 1993, the Department of Health issued a notice and finding of violation and order to Okada. The company was told to stop further discharges, submit a plan for corrective action, and to pay $20,000 in fines.
By July, a tentative settlement had been reached. Okada consented to a $9,000 fine, to be paid either in cash or in the form of a project, or some combination of the two. (A previous settlement with a contractor at the Harbor Court project in downtown Honolulu had allowed the contractor to sponsor a seminar on avoidance of water pollution in lieu of payment of a fine.) Since July 1993, however, no further action has been taken toward settling this violation.
Okada was a contractor for the City and County of Honolulu. Unlike other contractors for the city, it has worked out a settlement with the DOH on its own.
The McCully Water Main
City and County of Honolulu Board of Water Supply and E.E. Black, Ltd. In early February 1993, the Department of Health began receiving complaints about muddy water in Makiki Stream. While attempting to trace the source, the Department of Health investigator discovered excavation work being done by E.E. Black for the city Board of Water Supply. Water from the site near McCully and Young streets, was being discharged into an underground storm drain, feeding into Makiki Stream, without a DOH permit (required of all projects since October 1992). The DOH investigator explained to Black’s engineers the need to obtain a permit.
As it turned out, in September 1992, E.E. Black had spoken with staff at the DOH Clean Water Branch, had notified the DOH of the impending work, and (the company said) was given oral permission for the work to proceed. According to DOH personnel, however, the tentative approval was conditioned on E.E. Black applying for the permit – something it had not done.
E.E. Black began work on this project (installing two water mains for the city) on October 26, 1992, with dewatering of up to 600 gallons per minute beginning in late November. On February 16, 1993, E.E. Black submitted the permit application.
Altogether, the Department of Health received 13 complaints about muddy discharges from this work site, confirmed by a DOH investigator on at least seven different occasions. The complaints ended only after E.E. Black made substantial improvements to its filtering system starting in April.
On May 18, 1993, the Department of Health sent a notice of apparent violation to E.E. Black. That prompted a letter June 30, 1993, from Mayor Frank Fasi to John C. Lewin, director of the Department of Health. “John,” Fasi wrote, “I am afraid what we have here is another example of extreme environmental regulations that were enacted by the Legislature with no comprehension of what compliance burdens are being forced onto municipalities and, in turn, the public. We all care about protecting the environment. But, can’t the City spend hard-earned taxpayer dollars on something more productive than making slightly muddy water so clear that it is practically drinkable before discharging it into a storm drain? Again, we are faced with the issue of spending big dollars only to yield a minute benefit to the environment.” Fasi closed by asking Lewin to “personally look into this citation and … have your staff dismiss it.”
Lewin responded to Fasi on July 27, 1993, four days after the Department of Health had issued a formal notice and finding of violation and order, proposing a fine of $10,000. “I appreciate your concerns over the compliance burden and the wasteful expenditures of taxpayer dollars imposed by certain enforcement actions,” Lewin told Fasi. “The laws that are intended to benefit our community and protect the environment may instead penalize our citizens.” Lewin then explained that the enforcement action “is largely due to [the contractor’s] initial failure to apply for the federally mandated NPDES permit.”
“However;” he concluded, “I strongly agree with you that the measures for pollution mitigation must consider practical and realistic solutions… I will assure you that this principle will be thoroughly emphasized in future enforcement decisions.”
Both the city and E.E. Black have requested a hearing on the citation. As of February, the case was still unresolved.
Kailua Senior Center
City and County of Honolulu, Teval Corporation, and Bateman Construction. In February and April 1992, the Department of Health confirmed complaints that water being discharged from the site where the city was building its Kailua housing project for the elderly was being discharged into Kawainui Canal.
The city and contractors were issued a notice and finding of violation and order in March 1993, with a proposed fine of $20,000.
In December, a tentative settlement was reached among all parties. Fines totaling $6,000 would be paid to the state, with the $14,000 balance of the originally proposed fine being suspended if the city and the contractors commit no further water pollution law violations.
Hawai’i Kai Sewage Plant
Honolulu Community Services, Inc., and Hawai’i Dredging and Construction Company. In January 1993, lifeguards at Sandy Beach reported to the Department of Health that for several days, they had been seeing “great amounts of dark brown water” flowing into the ocean from the Hawai’i Kai Sewage Treatment Plant. On January 26, 1993, an investigator from the Department of Health visited the area and traced the discharges to a normally dry streambed.
The investigator found that the streambed, running across Sandy Beach Park, had been used as a drain for water pumped from a construction project at the sewage treatment plant. The project involved the installation of a new clarifier for the treatment of wastewater. Plans called for it to be placed at a depth of seven feet below sea level. With the plant being practically at sea level, the water table in the area is extremely shallow. The volume of water to be pumped from the construction site was therefore substantial – between five and 10 million gallons a day throughout the construction period, which the contractor estimated would last from two to five months.
The contractor had installed a siltation tank and had placed two berms to help filter the turbid waters. Still, the inspector found, “the flow rate was too great and the waters went around the berms, flooded the surrounding low land area and [flowed] down the stream onto the shoreline, causing much erosion to the beach.”
After just four days of periodic dewatering, erosion was already “immense,” the inspector found. If this kept up for the two to five months of dewatering that the contractor anticipated would be required, the discharge “would totally destroy the entire beach and kill the existing reef area.”
The following day, Hawaiian Dredging began work on a retention pond to hold the muddy water. One day later, the pond, 40 feet long by 20 feet wide, had filled to a depth of four feet. A 10-inch pipe drained it to the formerly dry streambed.
Hawaiian Dredging claimed not to have known about the need to obtain a permit for such discharges and, after the DOH issued a notice of apparent violation (essentially a warning letter) in April, it applied for one. The permit was issued in May, allowing filtered water from the construction site to be pumped to sea through the plant’s ocean outfall.
By June 22, the water off Sandy Beach was once again brown. A large plume of muddy water, 180 yards long by 40 yards wide, spread out from the area of the ocean outfall. A lifeguard told the DOH inspector that there had been similar discharges on June 18 and June 21. When told the problem, Hawaiian Dredging said it had forgotten the requirement that the DOH be notified when permit requirements were violated.
Additional violations were observed on July 15, August 5, and August 6. On December 6, 1993, the Department of Health issued a formal Notice and Finding of Violation and Order to East Honolulu Community Services, which owns the plant, and Hawaiian Dredging. Fines totaling $130,000 were proposed. An administrative hearing has been requested. The case remains unresolved.
Permit Backlog
One of the points mentioned in the Pacific Business News story is that the Department of Health has had difficulty issuing permits in a timely fashion. The article quotes Bruce Anderson as saying that 200 applications were pending in January, with 400 more expected to be filed in the next six to eight months.
Alec Wong, who is responsible for issuing permits for the DOH Clean Water Branch, confirmed those figures. He noted that the DOH rules advise people seeking permits to put in their application, or notice of intent, 90 days before the planned start of work. Of the 200 or so pending permits, he said, about half of them have already taken longer than 90 days.
The PBN article stated that “the state has also been offered the services of three City and County of Honolulu engineers” to help process applications. That’s not entirely accurate, Wong said. Instead, the city has offered to have its engineers look over the applications of people seeking from the city permission to discharge water into the City’s stormwater system, to try to make sure that the applicants have all the necessary information they need to get the DOH permits with a minimum of additional effort. Wong said that training sessions for three city engineers were conducted in mid-February. The initial review might make life easier for permit applicants as well as DOH staff, but the DOH would still have to review all applications.
In addition, the DOH has three new temporary staff whose primary function will be to speed along the permit processing time. One of them is on loan from the Environmental Protection Agency. Two of them are emergency hires, both of whom came on board in mid-February.
Judge Won’t Hear Case Against Hawai’i Kai
When most people think of the Hawai’i Kai sewage treatment plant, what comes to mind are not the most recent violations, but the company’s past record of sewage spills and deliberate discharge of partially treated sewage into the waters off Sandy Beach. These violations led to criminal convictions of two plant operators in federal court. Separately, the state Department of Health brought a civil case against the East Honolulu Community Services and others.
However, when that case came up on the court docket recently, the judge threw it out. Before the state took the company to court, the judge said, it should have conducted an administrative hearing. Laurence Lau, deputy attorney general for the Department of Health, said the state was not giving up and would do as the judge asked. “We want to get resolution” of this case, he said.
For more on the problems at the Hawai’i Kai treatment plan, readers may wish to scroll down to the [url=/members_archives/archives1991.php]November 1991 edition[/url] of Environment Hawai’i. As for the two plant operators convicted in federal court, they remain out on appeal. A three-judge panel of the Ninth Circuit Court of Appeals affirmed their conviction. Attorneys for the two men have now requested that their appeal be reheard by the entire Ninth Circuit bench.
Wastewater Workers, Developers Unite
The Hawai’i Water Pollution Control Association is a professional organization made up almost entirely of people who work in the state’s wastewater treatment plants or closely allied fields. The Land Use Research Foundation is a non-profit organization supported by the state’s large landowners and developers.
To the casual observer, it might not seem as though the two groups have much in common. According to Lua Line, the newsletter published by HWPCA, however, that group and LURF are joining forces in a campaign intended to win public support for the notion that the discharge of primary-treated sewage into the ocean is “not presently detrimental to coastal water quality.”
The joint campaign is described in the Summer-Fall edition of Lua Line, whose editor, Dennis Tulang, is administrator of the state Department of Health’s Wastewater Branch. LURF has tentatively proposed that its membership contribute funds to maximize the effectiveness of HWPCAs campaign. These monies, for example, will be used to hire a professional communications consultant to train HWPCAs speakers and to print thousands of informational brochures. The cost of such a professional endeavor is much more than what HWPCA could budget from its own treasury.
Lua Line reports that the executive committee of the Water Pollution Control Association has decided to pursue the public education campaign.
Some HWPCA members are unhappy to see their organization take a stand in the debate on primary versus secondary sewage treatment. A few have told Environment Hawai’i they are not pleased to see HWPCA joining forces with LURF without the membership being afforded the opportunity to vote on the matter.
Watch for what Roy Abe, HWPCA’s public affairs chairman, describes as a “grassroots, ‘high credibility’ campaign,” whose elements will include: “speaking engagements/public forums with major business/civic groups; media relations activities… including proactive placement of interviews with HWPCA experts; development and distribution of an informational brochure for dissemination to the general public and target groups; articles for corporate, union, and trade organization newsletters.”
1 When excavation occurs below the water table, contractors must pump out water to keep the site dry enough to allow work. Otherwise, water would quickly fill the excavated site. This process is called dewatering. Invariably, the water removed from the site is muddy or gravelly. If it is discharged to a stream or to the ocean without being filtered or before the mud is allowed to settle out, the receiving waters can become extremely turbid.
— Patricia Tummons
Volume 4, Number 9 March 1994
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