The privately owned sewage treatment plant serving the Hawai`i Kai area of O`ahu discharges its effluent about 1,400 feet offshore of one of the island’s most popular surfing areas, Sandy Beach. The plant’s permit, issued by the state Department of Health under authority of the federal Clean Water Act, places a number of different limits on what the plant can discharge. There is a limit to the number of pounds of solids that can be put through the outfall pipe on an average daily basis. There are also absolute limits — daily and monthly maximums — on the amount of solids discharged. Other limits exist as well.
Whether the limits on solids discharges were violated along with other permit conditions was the subject of a criminal trial in U.S. District Court in Honolulu. The trial, lasting the month of September, broke new legal ground. Searches of case law by parties involved in this matter disclosed no other instance in which individual plant operators had been charged with criminal violations of the Clean Water Act. Most violations are prosecuted as civil cases and are brought against corporations or municipalities rather than individuals. The advantages of civil over criminal charges are at least two: first, the standard of proof needed for convictions in civil cases is lower; second, civil convictions usually result in fines. While criminal violations of the Clean Water Act are subject to substantial fines also, the chance of collecting anything from the plant employees prosecuted in this case — men who were relatively low on the corporate ladder, and who in any case had been dismissed before their indictments by a federal grand jury — was virtually non-existent.
The defendants were accused of violating the Clean Water Act by deliberately pumping hundreds of thousands of gallons of biologically active sludge into the outfall pipe rather than processing it in the manner anticipated in the normal, designed operation of the plant. No one disputed that these discharges occurred on several dozen occasions spanning at least a three-year period, commencing in December 1986. The burden of proof on the prosecutors from the U.S. Attorney’s office was to demonstrate to a jury that the discharges caused the effluent limits and other requirements of the permit to be violated.
A Troubled Plant
The events leading up to the federal grand jury indictment against the plant operators can generally be traced back to 1986. Spills in January and May of that year resulted in more than 200,000 gallons of sewage entering the waters off Sandy Beach. The community was up in arms. The City Council was considering a moratorium on development in the area at a time when Kaiser Development Co., the corporate parent of East Honolulu Community Services, the company that owned the plant, was proposing some 2,000 additional hookups to the sewage collection system leading to the plant.
The Department of Health had been aware of problems at the plant since at least December 1984, but had done nothing to force corrections. In May 1986, following the second spill of the year, the Environmental Protection Agency put the DOH on notice that the EPA would initiate its own enforcement actions if the DOH would not or could not bring the plant into compliance.
In March, Kaiser Development Co. contracted with MEPAC Services, Inc., to operate the plant. By June 1986, the three parties (the state, Kaiser and MEPAC) had arrived at a settlement agreement, calling for specific improvements in plant operation, maintenance and equipment. The DOH had proposed a $10,000 fine, but suspended half of it on the condition that the plant comply with the terms of the settlement agreement.
The agreement was criticized heavily by the community and the County Council. The Environmental Protection Agency also was not pleased, and in August issued its own enforcement order calling for the plant to comply at once with its permit conditions or face possible federal prosecution.
The plant had been designed to achieve secondary treatment standards (removing 85 percent or more of the suspended solids from the incoming wastewater). When the Hawai`i Kai plant began to operate at that level of efficiency, however, it confronted another problem: a rapid increase in the volume of sludge, the slurry of solids and water removed from the effluent in the course of treatment. (Although sludge is by weight mostly water, it nonetheless is referred to by people in the sewage treatment industry as “solids,” owing to the high concentration of solid material in it relative to the effluent.)
The sludge was building up at the plant faster than it could be taken care of by existing digesters and drying beds. To deal with the problem, then, in December 1986, sludge from a holding tank was pumped to the pipe leading directly to the outfall. For the first time, operators of the Hawai`i Kai plant deliberately discharged this so-called waste-activated sludge into the waters off Sandy Beach.
The Case of the Missing Solids
The December 1986 discharge was not a one-time affair. It was repeated in February 1987 and dozens more times over the next three years. The plant’s owners purchased a belt filter press to reduce the volume of sludge by taking out more water (a process that simultaneously would have the effect of increasing the capacity and efficiency of the anaerobic digesters, where the sludge undergoes chemical processes designed to kill the potentially harmful organisms contained in it). The belt filter press, however, sat in its crate, uninstalled, for the next three years.
For two prolonged periods starting in March 1987, sludge from the plant was trucked, with the city’s permission, to a manhole leading to the city’s Sand Island treatment plant. But when sludge was not being hauled, the solids seemed simply to disappear. In December 1989, Paul Ciesla, an investigator from the Department of Health, and Steve Fuller, from the EPA, inspected the plant and determined that the systems in place for handling solids were woefully inadequate.
Just how inadequate became dramatically apparent a few weeks later. On January 6, 1990, a two-hour “upset” at the plant resulted in the unintentional release of concentrated sludge through the outfall. An internal investigation by the plant’s operators, MEPAC Services, Inc., followed. On March 5, a news release issued by MEPAC’s corporate parent, M&E Pacific, Inc., stated that the company had “uncovered a number of unauthorized, periodic discharges of suspended solids from the Hawai`i Kai facility into the ocean spanning several years… [T]here were unauthorized and possibly illegal discharges of suspended solids between 1986 and 1989 in an apparently deliberate manner by certain plant operators… As a result, the company has dismissed Michael Weitzenhoff, plant manager from 1986 to 1989 and currently a manager/associate, and Thomas Mariani, plant manager since 1989. The dismissals are effective today.”
At roughly the same time, the Environmental Protection Agency began looking into the spill, aided by the Federal Bureau of Investigation. The outcome was an indictment handed up October 18, 1990, by a federal grand jury in Honolulu, listing 31 separate criminal counts against three of the plant’s operators.
The operators were accused of one count of conspiring to violate the Clean Water Act. The remainder of the counts involved discharging prohibited substances into navigable waters of the United States, disabling the plant’s effluent sampling equipment (by placing the discharged material into the outfall pipe beyond the point where samples were taken), and causing false monthly discharge monitoring reports to be filed with the Department of Health.
One of the operators, Charles Reeves, pleaded guilty to the conspiracy count at the time he was arraigned in November 1990. The additional charges against him were dropped. The two other defendants — Weitzenhoff and Mariani — pleaded innocent and were tried in September, in the courtroom of Judge David A. Ezra. By the time the jury retired to its deliberations, seven of the original 31 counts against each of them had been dropped. On October 2, the jury returned its verdict. Mariani and Weitzenhoff were convicted on six counts and acquitted on 13. On five counts, the jury had been unable to reach a verdict. Sentencing has been set for January 13, 1992.
Creative Defenses
The fact of the discharges was undisputed. However, the government had to prove beyond a reasonable doubt that the discharges violated the Hawai`i Kai permit’s terms and that the defendants were responsible.
The defendants’ lawyers, Philip Lowenthal for Michael Weitzenhoff and Peter Wolff for Thomas Mariani, were nothing if not creative in representing their clients’ interests — a point that was noted on many occasions by Judge Ezra.
Precisely because of the unprecedented nature of the trial, the various legal arguments advanced by the defense merit special attention. Chief among them were:
The necessity defense. The defendants engaged in the discharge when confronted with a need to avoid a greater catastrophe — the one that, defense attorneys claimed, would result when solids in the plant finally built to the point that the plant would no longer be able to contain them. The result, they claimed, would be an “environmental Chernobyl” as the plant vomited its entire load of solids into the sea.
The selective enforcement defense. At the time of the Hawai`i Kai discharges, other sewage treatment plants in the state were in violation of the Clean Water Act, including plants owned by the City and County of Honolulu. Defense attorneys argued that the preference of charges against operators of a private plant constituted selective enforcement of the law and sought in pretrial motions to win permission to bring this point to the jury’s attention.
The “official reliance” defense. This argument, whose legal name is entrapment by estoppel, goes something like this: Because the city explicitly and the Department of Health tacitly approved the hauling of sludge to a manhole leading into the Sand Island sewage treatment plant, and because everyone knew the Sand Island plant was not able consistently to achieve even 50 percent removal rates for solids, operators of the Hawai`i Kai plant could reasonably infer first, that half or more of the sludge they were placing into the manhole would end up in navigable waters and, second, this was all right in the eyes of the DOH, and third, that it was therefore okay to dispense with the bother of hauling and dump the sludge directly into the outfall at the Hawai`i Kai plant.
The no-violation-occurred defense. This argument has several elements. The first of these ties in to the necessity defense. The permit allows bypasses of plant equipment to occur, without the Health Department having to be notified, when two conditions are met: one, when the bypasses are essential to “assure efficient operation” and two, when the bypasses do “not cause effluent limitations to be exceeded.” Much court time was spent by the defense in trying to establish that the discharges did not result in permit violations of either the daily maximum limit or daily average limit set by the permit. Just as much time was spent by the prosecution in trying to establish the opposite point.
The second “no-violation-occurred” point relates to the nature of the discharged substance. The permit clearly prohibits the discharge into navigable waters of “removed substances” — those substances generally characterized by the permit as “solids, sludges, filter backwash, or other pollutants removed in the course of treatment.” The defense argued that because of the extremely high water content of sludge (it is usually more than 90 percent water), one cannot refer to the solids as in any way “removed” from the wastewater. The same kind of materials that are suspended in the sludge are also found in the effluent (albeit in far weaker concentrations). Therefore, this argument goes, if one is to consider the discharge of the solids in sludge a violation of the permit, the permit itself puts the plant operator in an impossible situation, inasmuch as the routine operation of the plant allows the release of these same solids.
The lack of intent defense. The defendants cannot be convicted of knowing violations of the Clean Water Act, their attorneys argued, since they acted in a reasonable belief that their conduct was authorized by the permit.
Rules of the Game
Even before the trial began, Judge Ezra informed all parties that testimony about Sand Island’s problems complying with its permit terms would not be allowed. The “selective enforcement” defense was effectively prohibited.
During the trial, the judge issued a ruling on the matter of the defendants’ state of mind, or mens rea, that again went against the defendants. That ruling, filed September 13, 1991, summarizes the arguments in this fashion: “Defendants contend that in order for the United States to establish a violation… the United States must not only prove that they knowingly discharged a pollutant, in this case, waste activated sludge, but that they also knew their conduct violated the permit. The United States, on the other hand, contends that defendants’ construction of [the Clean Water Act] flies in the face of the express language of the statute and the legal maxim that ignorance of the law is no excuse or defense, particularly with regard to statutes affecting the public welfare.”
The judge concluded: “The defendants’ interpretation of the statute would, in effect, nullify the criminal penalties provided for under the Act…. [I]t is no defense that defendants may have misunderstood the permit or its requirements. By undertaking to operate a plant of this nature, where pollutants of a type presenting a danger to the public welfare are involved, the law understandably must presume that the defendants, who were licensed plant operators, understood the terms of the permit under which they acted.”
At the conclusion of the trial, with the jury out of the courtroom, Ezra addressed the argument of “official reliance.” It was not a “legally cognizable” defense, he said, and to allow defense attorneys to invoke it would “totally invalidate the very reason for the permit” and create an “open season” for dumping.
The necessity defense would be allowed, he said, although the evidence supporting it was “weak” and “thin.”
The argument that the release of waste activated sludge did not constitute a violation of the permit was left for the jury to decide, in considering the “plain language” of the permit and the evidence presented.
An Imperfect Prosecution
The government won convictions on the conspiracy count and five other counts. That it did so was an indication of the strength of the evidence against the defendants more than the prosecutorial prowess of the government’s attorneys.
At one point, a question by Dean Paik, one of two assistant U.S. attorneys prosecuting the case, nearly resulted in a mistrial. Paik was questioning a lifeguard on his knowledge of conditions of the water at Sandy Beach when out of the blue he asked the lifeguard whether he had been sick during this time. The lifeguard immediately answered in the affirmative, adding that a lot of other regulars at the beach were ill during this time as well.
The question was immediately ruled out of order, inasmuch as it amounted to soliciting testimony on the health effects of swimming in polluted waters from someone not qualified to render any expert opinion on the subject. A motion for a mistrial by defense lawyers was taken under advisement by Judge Ezra. After a recess, he announced that, given the attentiveness of the jury to his instructions, he was confident that the defendants’ right to a fair trial had not been compromised irreparably by the improper question. The motion for mistrial was denied — but not without a stern reprimand for Paik.
Another blooper by the prosecution occurred in the cross examination of Thomas Mariani. In an effort to elicit testimony from Mariani that he knew that the Department of Health needed to be notified when bypasses occurred, Paik confronted Mariani with such notification letters from operators of the two city plants where Mariani once worked. Paik asked Mariani to confirm that his signature appeared on one of the letters, at which point Mariani asserted it was not.
“Well, whose is it?” Paik asked. Thomas Mariani responded it belonged to John Mariani, an uncle who worked at the Sand Island plant. Notification letters that did bear Thomas Mariani’s signature, written when he worked at the city’s Ahuimanu plant, were not placed into the court record.
Yet another error occurred when the government’s attorneys failed to give the defense notification that they had possession of a report of a February 1990 meeting held between Thomas Mariani and Paul Ciesla, a DOH employee who had inspected the Hawai`i Kai plant in December 1989. In that report, Ciesla mentioned that Mariani had indicated knowledge of permit violations and was worried that he might be in trouble as a result of them. The government brought forward this report only after Mariani had taken the witness stand.
Because the report, and Ciesla’s testimony about it, would tend to impeach the credibility of Mariani, Judge Ezra ruled that the defense lawyers should have been notified of the existence of this report and been able to read it before Mariani testified. As a result, the report and Ciesla’s testimony concerning it were not part of the court record that could be considered by the jury. While the government attorneys presented their withholding of this evidence as a tactical decision — a gamble that they lost — Ciesla himself has stated that the government attorneys admitted to him at the outset of the trial that they had forgotten to include his report when they prepared their official list of evidence they intended to submit at trial.
Another significant oversight occurred in the government’s handling of one of its chief witnesses, Charles Roberts, an operator at the Hawai`i Kai plant. Roberts had kept a notebook in which he recorded the dates on which he saw the evidence of nighttime discharges of waste activated sludge. While Roberts testified about the dates and his observations, the prosecutors did not place his notebook into evidence. Consequently, when members of the jury, presented with counts alleging discharges on the dates mentioned in Roberts’ notebooks, were weighing the defendants’ guilt or innocence on those specific counts, and asked to be given the government’s evidence supportive of those counts, there was nothing to give them. This goes far toward explaining the fact that the jury did not convict the defendants on any of the counts alleging specific dates of discharges, but found them guilty instead of discharges occurring over longer spans of time.
Post Script
MEPAC Services lost the contract to operate the Hawai`i Kai plant in the months following the January 1990 spill. Since July 1990, a company called Professional Services Group has been running the plant. The belt filter press, which had languished in its crate for nearly three years, was installed and has been working for the last year and a half. The work force has been increased and on-the-job training, sporadic at best during the MEPAC days (according to trial testimony), has been conducted on a more regular basis.
To all appearances, problems at the plant have abated. Paul Ciesla, the DOH engineer with the enforcement section of the Clean Water Branch, inspected the plant in February. In a March 12, 1991 report on that inspection, Ciesla wrote: “The anaerobic digester, which had been cleaned and inspected at the end of 1990, was now back in operation and performing well as was the gravity belt thickener. With these two units fully operable, the plant can now digest and dewater all of its sludge on site… All ‘bypass’ piping has been removed, plugged, or legitimately rerouted by PSG, the present plant operators… Operator training has been provided since PSG assumed operations… ”
Ciesla urged that additional development in the Hawai`i Kai area be contingent on East Hawai`i Community Services meeting two conditions: First, it should “agree to a negotiated fixed date schedule to install and make operational [a] second final clarifier” and, second, “EHCS should agree to presenting a preliminary plan for golf course irrigation … [considering] the use of a filter.” In the plant’s original design, effluent was to be used to irrigate the nearby golf course. This was discontinued in 1986, when the levels of bacteria in the effluent were determined to exceed state standards.
Volume 2, Number 5 November 1991
Leave a Reply