County fears settling injection well case could lead to more suits, fines
Council members want county to settle, pull it from US Supreme Court
Maui County officials said if the long-standing injection well lawsuit is settled as is, it could leave the county open to other lawsuits against its other injection wells, possibly millions of dollars in fines and a need for millions of dollars for infrastructure work to remove the treated wastewater.
Department of Environmental Management Director Eric Nakagawa said Monday during a Maui County Council committee meeting that the county is looking to the Supreme Court to make a decision in a seven-year lawsuit to bring clarity to the Clean Water Act. The high court could take up the case in October.
But, if the matter is settled, then a lower court’s ruling (from the 9th U.S. Circuit Court) would apply, in which the court found the county was in violation of the Clean Water Act with its Lahaina Wastewater Reclamation Facility injection wells, county officials said.
Monday was perhaps the first time that the county administration had publicly laid out much information regarding the county’s position on the injection well suit, which was brought forward in 2012 by four environmental groups that were concerned that the Lahaina facility’s effluent was reaching the ocean and impacting coral reefs.
In 2014, the U.S. District Court in Hawaii ruled the county’s use of injection wells was a violation of the federal Clean Water Act. The county appealed to the 9th U.S. Circuit Court of Appeals and lost in February 2018. The court denied the county’s request to reconsider the ruling in March 2018. However, earlier this year, the U.S. Supreme Court agreed to hear the case after circuit courts around the country were split over their rulings on the reach of the Clean Water Act.
On Monday, the Maui County Council’s Governance, Ethics and Transparency Committee heard from around nine testifiers as well as David Henkin, the Earthjustice attorney representing plaintiffs Hawai’i Wildlife Fund, Surfrider Foundation, West Maui Preservation Association and Sierra Club-Maui Group.
On the committee’s agenda, although no action was taken, were two resolutions — one requiring the Department of Corporation Counsel to transmit all settlement offers in the case to the council for approval. The other resolution is to authorize settlement in the case, which would involve the county withdrawing its appeal.
It also includes the county no longer needing to make an admission regarding the wells impact on the environment. Other remedies in the settlement were already approved in other court cases, including investing $2.5 million or more to divert treated wastewater from the Lahaina facility’s injection well for reuse, reimbursing the community groups’ cost of litigation in District Court and the 9th Circuit of Appeals and paying a $100,000 penalty to the U.S Treasury.
After an all-day meeting, committee Chairman Mike Molina recessed the meeting until 10 a.m. Thursday.
At the base of the suit is the National Pollutant Discharge Elimination System permit, which the county does not have.
For the injection wells, the county has an Underground Injection Control permit issued by the Safe Drinking Water Branch of the state Department of Health, the county said back in 2016. Former Corporation Counsel Patrick Wong said at the time that the county applied for the NPDES permit several years ago after the court denied a motion to dismiss the lawsuit.
On Monday, Deputy Corporation Counsel Richelle Thomson said the county has applied for the NPDES permits, which are pending before the state Department of Health.
She added that the DOH is also seeking the outcome of the legal action.
Thomson also said that the NPDES permit, which was not quite designed for injection wells, asks for information that is hard to come across, such as the specific point at which the treated effluent discharge is released into the ocean.
She also noted that Clean Water Act maximum penalties amount to $53,484 per day, per well.
During a presentation Monday afternoon, Nakagawa said that the 9th Circuit’s decision would require an NPDES permit for “thousands of other types of sources in Hawaii, most of which are along the coastline.”
He said that the NPDES permits, which are under the Clean Water Act, were for outfalls, which are pipelines or tunnels for discharge. And he said that the Federal Safe Drinking Water Act applied to injection wells, cesspools/septic tanks and R-1 (treated recycled water) irrigation.
But the 9th Circuit’s decision put injection wells under the Clean Water Act, and Nakagawa questioned what it would do to all of the other categories under the Federal Safe Drinking Water Act.
He said that if the county prevails, the Clean Water Act and its provisions will go on as it has and the win will not “gut” the act as some opponents say.
Nakagawa presented a slide of alternatives as to what the county could do with the treated effluent. This includes land application treatment, which could cost $177 million but also requires injection well back-up during the wet season as effluent users may not irrigate as much; and direct potable reuse, which could cost $190-$200 million for Lahaina only, but this option also needs injection wells for brine.
Another alternative would be deep ocean outfall, which would cost $130 million for Lahaina only.
Council Member Keani Rawlins-Fernandez took offense to Nakagawa’s testimony and asked him if he was an attorney, to which Nakagawa said “no.”
“Why are you making legal arguments?” Rawlins-Fernandez asked, referring to questions she asked him at a meeting last week regarding Monday’s presentation.
She was concerned about Nakagawa’s “alarmist” presentation, which she felt could make people with cesspools in fear of the suit, when some experts and an attorney earlier in the day said individual cesspool owners would not be picked on by government authorities no matter the outcome in the county case.
Testifiers gave differing views on the lawsuit Monday.
Oahu engineers from a science and engineering public interest group testified before the committee and said to not settle the lawsuit and to keep the option open of having injection wells, as they said not all injection wells are bad.
James Kumagai and Hans Krock from Oahu testified in person Monday.
The professionals said in their written testimony that a “ruling at the highest judicial level would eliminate confusion” on the issue of the NPDES permit for injection wells and similar subsurface discharges.
The letter said the requirement for injection well NPDES permits may severely restrict disposal and management options and may require significant expenditures for alternative systems “that may result in little or no additional public health and environmental benefits, or at worst, cost more for less.”
Maui County Recycled Water Coordinator and engineer Albert Hahn, who was testifying on his own behalf Monday, said he felt some council members and the public were being misguided by plaintiff attorneys at Earthjustice.
He questioned council members about not speaking with county employees who handle the recycled water and also told members that the county began its own recycled water program without direction from the plaintiffs or their attorneys or even the U.S. Environmental Protection Agency.
Hahn said in his written testimony that the county did not break any law.
“And if we settle, the current judgment will set precedence, we will be saddled with financial penalties for not breaking the law, and that the next lawyer is already in line to take their bite of us.”
Rhiannon Chandler from the Waterkeeper Alliance urged the county to settle and said that the fear that settling the suit would also put those with cesspools in danger is false.
She said that with the state Department of Health looking to crack down on cesspools in the future, it is unlikely the state will go after individual homeowners if this suit is settled.
Of course those with cesspools close to nearshore waters already face scrutiny, but those up mauka will not be targeted, Chandler said.
But pointing to the amicus, or “friend of the court” briefs filed in the case, by parties not involved with the suit but wanting to weigh in, Chandler said that if Maui County wins it could allow already powerful companies to make more money and continue polluting without oversight.
Testifiers noted that the petroleum industry has weighed in with a brief.
Hannah Bernard, the director of the Hawai’i Wildlife Fund, one of the plaintiffs in the case, also urged the council to help settle the case.
She contended that the current permit that the county has doesn’t adequately protect marine life.
She added that if someone has a wastewater system such as a cesspool, they would not be subject to same permitting as the county.
“We are talking about apples and oranges here,” Bernard said, adding that cesspools were never designed with the intent of reaching the ocean, but injection wells are.
* Melissa Tanji can be reached at firstname.lastname@example.org.