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Unitek Envtl. Servs., Inc. v. Hawaiian Cement

ELR Citation: 27 ELR 20483
Nos. 95-00723-SPK, (D. Haw., 08/07/1996)

The court holds that a cement manufacturer violated the Hawaii state implementation plan (SIP) and the Clean Air Act (CAA) by emitting fugitive dust in excess of the SIP limit and by failing to take reasonable precautions to prevent dust from becoming airborne or from crossing its property boundary line. The court first holds that a U.S. Environmental Protection Agency (EPA) notice of violation (NOV) that was based on the manufacturer's own monitoring data, plaintiff neighboring landowner's independent analysis of the manufacturer's monitoring data, and the manufacturer's admission of noncompliance and determination that the dust standards could be met are "credible evidence" that landowner may use to establish violations of the SIP's dust-emissions limitation. The court next holds that the landowner may use the manufacturer's internal memoranda and several NOVs issued by the Hawaii Department of Health to establish that the manufacturer failed to take reasonable precautions to prevent dust from becoming airborne and crossing the property boundary line. Based on the entirety of the evidence, the court holds that the manufacturer continuously violated the emissions limitation from 1993 to the date of this lawsuit and has failed to operate its plant with good air-pollution control practices for minimizing emissions. The court next holds that the SIP provisions are enforceable in a citizen suit as emissions standards or limitations, because the SIP sets forth a specific limitation for fugitive dust and EPA has fully approved the SIP. Further, although it may be true that citizens cannot sue for alleged violations of a nonobjective standard, the SIP's 150 microgram per cubic meter dust-concentration standard is not a nonobjective standard. The court next rejects the manufacturer's contract-based defense that the landowner waived its right to challenge the manufacturer's alleged CAA violations when the landowner purchased its property. The court then holds that the landowner's 20-year failure to take action regarding the dust emissions does not prove that the landowner's claim was unreasonably delayed or that the manufacturer was subjected to prejudice sufficient to warrant upholding the defense of laches. Last, the court rejects the manufacturer's argument that because the landowner's true motive is economic gain, the doctrine of unclean hands should bar its claims.

Counsel for Plaintiffs
Jeffrey W. Leppo
Bogle & Gates
Two Union Sq.
601 Union St., Seattle WA 98101
(206) 682-5151

Counsel for Defendant
Thomas P. O'Donnell
Pillsbury, Madison & Sutro
10 Almaden Blvd., San Jose CA 95113
(408) 947-4000