Lawsuits spawned by the dumping of sludge from the Hawai`i Kai sewage treatment plant will take years to litigate. The case against the individual plant operators — Charles Reeves, who pleaded guilty, and Michael Weitzenhoff and Thomas Mariani, who were convicted — is the only criminal prosecution, but at least two civil suits have been filed in state court. A third civil suit was filed in federal court.
One of those (the federal suit) has been settled. That suit was brought by Nansay Hawai`i against Hawai`i Kai Development Corporation and East Honolulu Community Services. Following the January 1990 spill, Nansay purchased a leasehold interest in property along the Hawai`i Kai Marina. It then had fears that it would not be able to develop the site if the Hawai`i Kai sewage treatment plant were deemed (by the Department of Health, County Council, or other party) incapable of handling the increased load that would be caused by Nansay’s proposed condominium development. Invoking the citizen-suit provision of the federal Clean Water Act, Nansay sought “a judicial declaration that the defendants Hawai`i Kai Development Corporation and East Honolulu Community Services violated the Clean Water Act” and certain damages following therefrom, the dollar amount to be proven at trial. (The citizen-suit provision of the Act was not intended to be used to recover damages. Rather, it was designed as a means of allowing citizens to sue for enforcement if the responsible authorities were perceived to be falling down on the job. Nansay’s use of it in this fashion was unusual, if not unprecedented.)
Nansay and HKDC settled the suit out of court in late June of 1991, after HKDC had received assurances from the Department of Health that the plant’s capacity could accommodate anticipated growth.
The two state suits are pending, delayed for months by the federal criminal case. The first of these was filed in March 1990 by MEPAC Services, Inc., against Michael Weitzenhoff, Thomas Mariani, and other parties unknown to MEPAC Services. MEPAC is seeking compensation for “damages to its professional reputation, loss of any profits it may sustain, indemnity for any fines and penalties it may be required to pay, or other losses it may sustain as a result of the actions of the defendants.” Weitzenhoff and Mariani have filed counterclaims for damages against MEPAC, stating that they were wrongfully fired.
The second civil suit in state court was filed October 17, 1990, by the state of Hawai`i against East Honolulu Community Services, Inc., MEPAC Services, Inc., and others (including Weitzenhoff and Mariani as well as MEPAC’s corporate parent, M&E Pacific, Inc.). It has resulted also in various cross-claims by the defendants against each other, with EHCS stating that if it is found liable, MEPAC is liable to EHCS in turn.
The state is seeking damages for the discharge of “floating solids” on January 6, 1990, as well as for illegal bypasses in previous months (the same for which Weitzenhoff and Mariani stood trial), and other violations of the state’s environmental laws. In its pretrial statement, filed October 17, 1991, the attorneys for the Department of Health said they would be seeking monetary penalties. “In particular,” they noted, “the plaintiffs did not comply with the permit’s honor system of self-reporting and record-keeping, and the defendants operated and maintained the plant poorly.”
With claims and counter-claims among the various parties approaching the mathematical limit, MEPAC recently sought to simplify matters by consolidating the two civil suits — a move that no party is expected to object to. Should that occur, the combined cases will probably not come to trial until well into 1992.
Volume 2, Number 5 November 1991
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