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Molokai Chamber of Commerce v. Kukui (Molokai), Inc.

ELR Citation: 26 ELR 20303
Nos. No. 94-00530 DAE, 891 F. Supp. 1389/(D. Haw., 05/23/1995)

The court holds that unpermitted stormwater discharges emanating from the halted construction of a nine-mile-long water transmission pipeline are "ongoing violations" of the Federal Water Pollution Control Act (FWPCA) subject to citizen suit. The court first holds that the Hawaii regulations regarding general permits for construction activities require issuance of a notice of general permit coverage before construction may legally commence, because the general permit requirements explicitly condition coverage on the state health department's issuance of notice. The court notes that the only reasonable alternative to this interpretation is that general permit coverage begins 90 days after the owner files a notice of intent; and in this case, because there was no indication at the time community associations filed their complaint that the defendants' "best management plan" in the notice of intent had been accepted by the health department, the 90-day period would not have run. The court holds that under either interpretation of Hawaii's regulations, defendants' project lacked permit coverage when the associations filed their complaint and defendants were therefore in violation of the FWPCA. The court next holds that operating without a permit is a present, ongoing violation. For this court to hold that only the actual violation of permit requirements, and not the failure to obtain permit coverage itself, can constitute an ongoing violation, would turn the purpose of the Act and its provision for citizen enforcement on its head: Citizens could bring suits to stop violations of permit requirements by a covered discharger, but they could not bring suits against a discharger who had not obtained coverage at all. The court next holds that defendants' cessation of construction work did not end their violation. For defendants to show that they were not in violation of the Act, they would have to eliminate all issues of fact concerning whether any pollutants were discharged during the period in which plaintiffs filed their complaint. While plaintiffs have not submitted evidence of discharges occurring after March 1994, neither have defendants submitted sufficient evidence to satisfy the court that no discharge occurred after March 1994. The court holds that defendants have not proven that plaintiffs' allegations were sham and raised no issue of fact. Turning to defendants' preclusion claim, the court holds that FWPCA §309(g)(6)(A)(ii) requires that state enforcement, like federal, seek penalties in order to bar citizen suits. In comparing state enforcement, the court holds that it must look to the particular statutory provision under which the enforcement action at issue is brought, rather than to the entire scheme of available remedies under state law; and that the state must seek penalties, not merely compliance, in order for its action to have a preclusive effect. To hold otherwise would give state actions significantly more preclusive effect than federal actions, a result supported by neither the language nor the history of the FWPCA. The court holds that the commencement of an action for penalties was not signalled by the health department's letter stating that penalties may be sought under a separate statutory section, particularly when the state has taken no further steps toward the imposition of penalties. The court thus holds that the state is not diligently prosecuting a comparable action and the citizen suit is not barred. The court then holds that it need not revisit its conclusion in another case that the notice and participation provisions of Hawaii law are insufficiently comparable to §309(g)(6)(A), because it holds that the health department has not commenced an action for penalties. Finally, the court grants a continuance under Fed. R. Civ. P. 56(f) on whether defendants are now in compliance with the Act, which would moot plaintiffs request for injunctive relief. Even though the health department has now issued a notice of general permit coverage, plaintiffs seek discovery regarding defendants' compliance with the general stormwater discharge permit. When defendants bear a heavy burden of proving compliance and mootness, the court will not make a determination on an incomplete record. In addition, as construction on the project has not yet begun again, defendants have a particularly difficult task in demonstrating with absolute clarity that they will not again fail in their compliance. The court notes that even if the claims for injunctive relief are found to be moot, the claims for civil penalties survive and create a continuing controversy.

Counsel for Plaintiffs
Denise E. Antolini
Sierra Club Legal Defense Fund
212 Merchant St., Rm. 202, Honolulu HI 96813
(808) 599-2436

Counsel for Defendants
Henry E. Klingeman
McCorriston, Miho, Miller & Mukai
Five Waterfront Plaza
500 Ala Moana Blvd., 4th Fl., Honolulu HI 96813
(808) 529-7300