City faces stiff fine, penalties for massive Ala Moana sewage spill

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The city is facing a stiff fine and must make big changes in Honolulu’s sewer system and wastewater procedures nearly a year after hundreds of thousands of gallons of raw waste spilled into streets, streams and oceans after a storm.

It’s a story Always Investigating has been digging into and following ever since, telling you about the changing volume amounts made public by the city, and higher estimates by concerned staff.

We discovered the Ala Moana pump station — the city’s largest — was unattended before a mechanical failure there, and a predawn overflow alarm at a separate facility did not lead to the proper personnel alert.

The city has always maintained it did everything it could, citing unpredictable storm weather.

Now, Always Investigating has learned there’s a looming health department enforcement action that indicates more could have been done and requires changes to make sure it doesn’t happen again.

The state says it’s wrapped up its investigation, and has lined up consequences that include more than just fines. They want changes in how the city staffs and manages procedures, and how it maintains infrastructure.

The city says it’s already making improvements, and points to the last storm and a declining number of sewer spills as proof it’s working.

When Tropical Storm Darby rolled near enough to flood parts of Oahu this month, sewage spills were left in its wake, but from reports so far nothing to the scope of August 2015. That’s when a big rain event, which wasn’t even a named storm, led to hundreds of thousands of gallons overflowing in the Ala Moana area.

Always Investigating wanted to know what changed since then, especially facing another wet forecast weekend and months left in hurricane season? We also wanted to know what came of the post-incident environmental reviews.

The state Department of Health revealed it’s wrapped up a major enforcement action against the city.

“Because of the seriousness of the violation, the magnitude of the violation, it did take longer than normal,” said Keith Kawaoka, Department of Health deputy director of Environmental Health Administration. “We reached an agreement at least on a technical basis probably a couple months ago.”

What is an Administrative Order on Consent?

“It is a formal administrative action which the respondent (in this case, the City) agrees to rather than going through the standard NOVO (Notice and Finding of Violation) process which could result in a hearing/contested case.

“An AOC is entered into voluntarily to settle disputes without the risks of adverse findings and conclusions, or a final order or judgement after litigation. An AOC documents findings of fact, conclusions of law, and the alleged violations. However, an AOC does not constitute an admission of fact, violation, fault or liability, and the participant neither admits or denies the factual allegations and legal conclusions set forth in an AOC.

“In other words, the two parties agree to disagree and settle/resolve all liability for violations. This type of agreement can expedite corrective actions because it usually involves a strict timeframe, deadlines for specific actions and stipulated penalties for non-compliance. Whereas, a NOVO could drag on with contested case hearings and legal proceedings before reaching resolution.”

— Hawaii Department of Health

The state says in the time since, the legal language of its enforcement action — called an Administrative Order on Consent — was also finalized after several back-and-forths with the city.

“They reviewed those stipulations. We have a tentative agreement with the city to go forward. They just have to get approval from the city council,” Kawaoka said. “They’re anticipating that if they can get it on the calendar for this month, the next city council meeting is in early September.”

The City Council must review and vote on it because it involves fines and legally binding commitments.

Lori Kahikina, the city’s Environmental Services director, declined an interview but said in a statement the city feels there’s more work to do on the agreement: “The draft AOC is being closely reviewed at this time by the Department of Environmental Services, including legal counsel, for any corrections and concerns.”

The state says they already received city comments, “which the Department of Health has incorporated in the latest version… If they have further changes, DOH may consider those changes based on their merits,” a department spokesperson said.

Until the city council gets and votes on it, neither the state or city departments will disclose the exact terms nor the details of alleged violations found, but the state did say fines can be $25,000 per day per event, and they consider this a several-day, multi-incident event.

There will also be penalties if prescribed fixes are late or not done. They say the AOC will detail corrective actions to be expedited.

“Making sure that from a staffing standpoint, managerial and procedural, various practices are corrected,” Kawaoka explained, “instituting standard operating procedures for the staff to do, both in terms of normal times and storm situations. Not only a fine, but infrastructure spending, and maintenance procedures called asset management systems.”

Trevor Ozawa, the councilman for the area affected by the 2015 spill, said, “It’s just confirmation of what we have suspected all along, was that there was a lack of oversight, there was a lack of leadership that day, and there were definite missteps that were preventable on that day.”

Ozawa backed a resolution after the event asking the administration to keep the council posted on outcomes from it.

“I asked that the administration keep us informed of any violations of law related to this or any fallout from the sewage spill,” Ozawa said, adding he still hears from constituents concerned about it. “These people are still frustrated and they deserve to know what we’re going to do to prevent that from happening again, especially given the fact that we’re in the middle of the storm season. The constituents there are still up in arms from what happened last year, and more importantly they want to know, if there are violations that were found from the state department of health, they should know.”

Always Investigating asked the Department of Health if the agreement was reached internally a couple of months ago and here we are, at another rainy month like last year was, why wasn’t this expedited to make sure there would be transparency about whether those corrective actions were put into place?

“You have to address the city about what kinds of actions took place regardless of what this violation was about and what corrective actions they are taking,” Kawaoka said. “I think they have learned from last year’s events to institute various practices and procedures to ensure this kind of thing doesn’t happen again.”

We asked the city about corrective actions since last year, and in Kahikina’s written responses she said: “We are being more conservative on storm predictions and their unpredictability… When we are alerted a major storm is coming, ENV and DDC have pre-storm planning meetings to ensure all construction vulnerabilities are minimized and operational issues as well as communications plans are opened across all divisions.”

As for technical changes, she said: “ENV is installing level controls at manholes that will produce automatic alerts, locking down manholes in problematic low-lying areas where residents/businesses may be ‘popping’ them to alleviate high rates of inflow, and conducting more surveillance of problem areas as a storm develops to make sure lines are free-flowing without any clogs. Construction project meetings are held with the Department of Design and Construction to discuss all sewer projects and the potential impacts on the collection system, pumping stations and treatment plants. The ENV director personally attends the weekly meetings at two major WWTPs (Kailua and Sand Island). ENV is ensuring that we have the capability to reinstall pumps and other infrastructure that is under construction before the approach of any major storm.”

Click here to see city’s progress in preventing sanitary overflows (.pdf).

Always Investigating showed the Department of Health a city chart that tracks a declining number of sewage-spill incidents over the past decade and asked, “Since they have had a continuing decline in the number of episodes, when you see this what do you think?”

“There’s no doubt they’ve made substantial progress in reducing the amount of spills that have occurred over the years, as well as the volume,” Kawaoka said. “It didn’t happen like last year, but they did have some spills that occurred (with Tropical Storm Darby). Whether they instituted various practices to prevent that, you have to ask the city about that. We will investigate those events as well, and it may result in additional actions from our side.”

The state says the fines for last year’s alleged violations may pale in comparison to the infrastructure and staffing changes required from it.

“I don’t know how much that’s going to cost, but I’m sure it’s going to cost quite a bit,” Kawakoa said. “The fine part is to somewhat restore what damage they did, but the corrective action is to make sure it doesn’t happen in the future.”

Always Investigating asked, will the AOC and its report of findings revise or confirm how big was the spill was?

“I don’t think we may ever know,” Kawaoka said. “There was discovery made earlier. In fact our staff, when they were going to work to our office, they discovered some of the manholes popping up and that’s not supposed to happen. I know the response from the city came a little while after that, after the notifications were made.” Kawaoka added that any city gallon-flow estimates started after that.

“Where the various points of releases were occurred along the Ala Moana Boulevard area, there was no specific volume measuring going on,” Kawaoka added. “It went into the park. It went into the waterways, so regardless of what the amount is, it is a serious violation.”

The federal Environmental Protection Agency told Always Investigating it is deferring to the state on this event, and there is no separate federal procedure on it at this time.

The AOC will be the first state enforcement against the city over sewers since penalties connected with the Ala Wai Canal spill in 2006.

“This has been one year since probably the worst infrastructure incident since the Ala Wai Canal spill,” Ozawa said, “and certainly the most notable in the international media and national media as well. I certainly hope is rectified immediately, and I’m going to be on it.”

Friday afternoon, Ozawa sent a letter to the administration asking for immediate action including getting the consent agreement before the city council. The agenda for the next Public Works, Infrastructure and Sustainability committee meeting has to be set by next week.

Always Investigating will follow up on whether the enforcement report makes it in time.

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