Kealakehe sewage plant discharges more than 1 million gallons of wastewater into a lava pit near the ocean.

Settlement talks are scheduled in an environmental lawsuit involving a county-operated Big Island sewage plant in Kona.

The case, brought by Earthjustice on behalf of Hui Malama Honokohau, alleges that Hawaii County is violating the Clean Water Act by operating the Kealakehe plant without proper federal authorization, namely a National Pollution Discharge Elimination System permit.

Lawyers for the county say the Kealakehe plant, in operation since 1993, doesn’t need an NPDES permit and its wastewater discharges meet state and federal standards.

A settling pond at the Kealakehe wastewater treatment plant is located near Kona on the Big Island. The black lines are aeration tubes. The green edge is an algae bloom that comes and goes with different seasons. (David Croxford/Civil Beat/2024)

The seaside plant is about 3,700 feet from Honokohau Harbor and about 5 miles south of Ellison Onizuka Kona International Airport. The 31-year-old plant handles more than 1 million gallons of human waste from the greater Kailua-Kona area every day and is designed to process up to five times that amount.

The waste is screened, with solids removed and trucked away to a landfill. The remaining liquid waste is pumped into five large, aerated settling ponds where sludge settles to the bottom.

An access road overlooking the settling ponds is a hot spot for birders. On a recent afternoon, a variety of ducks, egrets, shorebirds and more were sunning themselves, pecking at insects and spying tiny fish navigating the ponds at the industrial facility.

Settling ponds at the Kealakehe wastewater treatment plant in Kona on the Big Island are popular among a variety of waterfowl. (David Croxford/Civil Beat/2024)

Gentle breezes created small waves in the wastewater ponds.

Below the surface, wastewater in the final settling pond was piped over to a chlorination machine, then pumped under Queen Kaahumanu Highway and to what is called a “disposal percolation basin.” It’s basically a crack in the lava.

From a pipe, chlorinated wastewater can be seen flowing into the pit. From there then it drains into ground water and ultimately the ocean.

The process bothers people like Mike Nakachi, a boater and Native Hawaiian cultural practitioner who regularly uses the harbor and the ocean.

Native Hawaiian cultural practitioner Mike Nakachi is concerned about the safety of the water in and around Honokohau Harbor. (David Croxford/Civil Beat/2024)

Nakachi says the waste is harming marine life and exposing paddlers and other ocean users to harmful conditions like skin rashes and staph infections.

“After you go in the water, you’re using the Dawn soap. You’re washing yourself off, just to be safe. And that’s just the tip of the iceberg,” Nakashi said in an interview at the harbor.

The public interest law firm Earthjustice filed suit against Hawaii County on Sept. 25 on behalf of Hui Malama Honokohau, which is made up of Native Hawaiian cultural practitioners, paddlers, people who fish and other ocean users.

Wastewater that enters the plant from a gravity drain runs through a filtering process (center tower) to eliminate things like sand, grit and disposable wipes. The remains are fed to the white hopper on the left then disposed of in a landfill. (David Croxford/Civil Beat/2024)

The complaint alleges that the Kealakehe wastewater leaches into the nearby ocean, allowing contaminants, nutrients, metals and endocrine-disrupting compounds to enter the nearshore environment.

Not only does this impair the water, but it exposes ocean users to potential infections and waterborne illnesses, such as E. coli.

“Hui members have contracted staph infections – in some instances methicillin-resistant Staphylococcus aureus infections — after entering the harbor and adjacent waters,” according to the complaint.

A pipe discharges wastewater from the treatment plant to a disposal percolation basin, essentially a hole in a lava field that drains into the groundwater. (David Croxford/Civil Beat/2024)

The county’s top attorney Elizabeth Strance said by phone that the Corporation Counsel’s Office would not comment on active litigation.

The county has hired an outside law firm based in Honolulu to represent it in the matter.

In an Oct. 30 answer to the complaint, Deputy Corporation Counsel Lerisa Heroldt said the county denies that it is legally required to have an NPDES permit.

The effluent flow from the Kealakehe plant has been treated, oxidized and disinfected to meet state and federal standards for secondary wastewater treatment.

She also denied allegations that contaminants are being discharged into the ocean and harming water quality and the health of nearshore ecosystems. Earthjustice is making assumptions based on untrue or unestablished facts that are speculative and argumentative, Heroldt wrote.

The lawsuit is currently in the discovery phase with a settlement conference scheduled for Feb. 21.

Earthjustice attorney David Henkin expressed confidence that his legal arguments will prevail.

Attorney David Henkin argued the Lahaina injection well case before the U.S. Supreme Court on behalf of the Hawaii Wildlife Fund and other environmental groups. Henkin won the case. (Nick Grube/Civil Beat/2019)

Henkin successfully sued Maui County for its long-term use of injection wells in Lahaina that pumped treated waste underground that eventually led to the ocean, damaging marine life including coral reefs, particularly around Kahekili Beach Park.

Henkin took the case to the U.S. Supreme Court and won in a 6-3 ruling in 2020.

Maui County and former President Donald Trump’s administration had argued that the Clean Water Act should only cover waste that is discharged from a point source into waters of the United States, not wastewater that percolates through groundwater into the ocean.

Writing for the majority, Justice Stephen Breyer said that reasoning was flawed and would be a massive loophole in the Clean Water Act.

Henkin said he had hoped that precedent would have precluded the needed to sue Hawaii County over what he sees as essentially the same issue. But attempts to persuade the county to address the issues at the Kealakehe plant failed.

“We hope that the county has a change of heart and focuses on fixing the problem instead of litigation,” Henkin said.

Civil Beat’s coverage of environmental issues on Hawaii island is supported in part by a grant from the Dorrance Family Foundation

Read Earthjustice’s complaint:

Read Hawaii County’s answer to the complaint:

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