Injection wells ruling opens county up to civil penalties

The Maui News
January 27, 2015

By LEE IMADA - Managing Editor

A federal judge effectively ruled Friday that all four injection wells at the Lahaina wastewater facility are "illegal" and in violation of the Clean Water Act, leaving the county open to tens of thousands of dollars a day in civil penalties, a lawyer for a group suing the county over the wells said.

"Any use of the Lahaina facility is illegal" until the county obtains a Clean Water Act permit, said David Henkin of Earthjustice, who represents a coalition of groups in court, on Monday.

The lawsuit, filed in April 2012, contends that wastewater from the injection wells is making its way to the ocean, endangering the public, contributing to algal growth and harming coral reefs. Four Maui community groups - Hawai'i Wildlife Fund, Surfrider Foundation, West Maui Preservation Association and Sierra Club-Maui Group - filed the lawsuit to force the county to secure a National Pollutant Discharge Elimination System permit, part of the Clean Water Act, which would set limits on the pollutants that can be discharged from the wells.

The county receives 4 million gallons of sewage a day at the Lahaina facility and injects treated and disinfected effluent into the ground, according to the court ruling for summary judgment. Results of a University of Hawaii dye study released in the summer of 2013 showed that effluent from injection wells 3 and 4 was making its way to the ocean near Kahekili Beach Park.

In May, Judge Susan Oki Mollway found that the county's unpermitted discharges by wells 3 and 4 were in violation of the Clean Water Act. On Friday, Mollway ruled that the discharges from wells 1 and 2 were illegal as well.

She noted that the dye study for well 2 showed no impact on nearshore waters and the lack of a study for well 1. However, Mollway said in her ruling Friday that "the parties do not dispute that effluent pumped into wells 1 and 2 eventually finds its way to the Pacific Ocean."

Mollway also denied a county motion to revisit her earlier ruling on wells 3 and 4.

The court will impose civil penalties for the county's violations following a trial set for Aug. 11, according to an Earthjustice news release. Maximum penalties in the case already exceed $100 million, and "the meter is ticking at a rate of over $100,000 per day," the news release said.

"This environmental disaster has been going on for over 30 years," Henkin said in the news release. "This latest decision is a wake-up call for the county to stop using the ocean as a sewer and finally fix this problem. The county can and should reuse the millions of gallons of wastewater from the Lahaina facility to meet the needs of golf courses, resorts and other developments, not dump them onto fragile reefs."

Henkin told The Maui News that his coalition doesn't want to "see millions go to the federal treasury" and would rather see the money "invested in Maui" in infrastructure that will reuse the effluent in agricultural fields, for landscaping and for golf courses. He added that his coalition cannot "make" the county invest in infrastructure, indicating that his group was using the lawsuit and its threat of civil penalties as a means to force the county in that direction.

Maui County spokesman Rod Antone said Monday that the county has already filed for a permit with the state Department of Health and that talking about fines "is too early."

During the campaign in October, Mayor Alan Arakawa told The Maui News that the injection well situation in Lahaina was not so easy to resolve.

"Do we tell everybody don't flush?" he said. "We have to deal with reality. This water is coming in. . . . (We have to) come up with a solution while it is live."

He said that the effluent used to irrigate the sugar and pineapple fields, which have disappeared from Lahaina. "That stuck us with having to deal with the water," he said.

The answer, Arakawa said, could be a project by Anaergia Services to revitalize about 2,000 acres of West Maui's fallow farmlands to grow a biocrop that could be used to generate electricity. The effluent could be used to water the fields, he said.

Henkin said that the county has applied for a Safe Drinking Water Act permit, not the Clean Water Act permit the lawsuit is seeking. He added that the county filed the latter permit in the winter of 2012 but did not cite the location for the permit.

"We are willing to agree to resolve this case," Henkin said, noting that the Maui County Council Committee of the Whole will be meeting today to discuss a settlement in closed session.

"Let's figure out something else" than injection wells, Henkin said.

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