Ka Wai Ola - Office of Hawaiian Affairs, Volume 15, Number 1, 1 January 1998 — OPEN DuMPS AND CITIZEN SuITS RESTORING RIGHTEOuSNESS TO THE LIFE OF THE LAND [ARTICLE+ILLUSTRATION]

OPEN DuMPS AND CITIZEN SuITS RESTORING RIGHTEOuSNESS TO THE LIFE OF THE LAND

Staff attorney with the Native Hawaiian Legal Corporation

What's \ vrong \vith this picture? Last month one of 0'ahu's most beautiful stretches of land was blanketed in thick smoky haze. Students were let out of school early, drivers were forced to turn on their headlights during the day, and clinics noticed an increase in the number of breathing problems. All this was due to the fact that a brush fire problem in Wai'anae had run amuek and people were suffering. In articles describing last month's fires in Wai'anae, newspapers reported that old tires and other debris fueled the blaze whieh threatened the health and safety of those who live and work on the Wai'anae Coast. And last July, frustrated Wai'anae Valley Hawaiian Homesteaders appropriately called attention to the dust problems generated by a landfill located above their homes. Why is this happening where it is? The seeming remoteness and wide open spaces of the Wai'anae coast offer illegal dumpers the perfect plaee for committing their crimes. But the dumping of abandoned cars, storage barrels, batteries, contaminated soil, paints and solvents is also occurring in areas where Native Hawaiian communities live, work and p|ayAs citizens, you have the right to eomplain about dumpers to the responsible state and federal officia!s. And, as explained below, you also have the right to personally go after such polluters, by filing a citizens suit to force them to elean up the land. Both Congress and our state legislature have delegated to the federal and state govemment the power to requi;e that wastes be properly transported and disposed in legally permitted iandfills. The govemment ean also eompel transporters of such wastes and other persons who participate in polluting to elean up the land. However, in the face of govemment inaehon, laws that authorize citizen suits ean provide the public, upon whom the burden of polluhon falls, with a means of redress. Under federal law, citizen suits to stop pollution and force polluters to elean up may be brought against any person who contributed to

the unauthorized disposal of wastes that may present an imminent and substantial danger to health or the environment. Commonly encountered types of wastes that ean be cleaned up through a citizens' suit include abandoned vehicles, storage barrels, batteries, contaminated soil, paints, and solvents. Imminent dangers from dumping whieh occurred in the past ean be the subject of a citizen suit, if the wastes eonhnue to present a threat; however, in such instances, a lawsuit should be brought within at least five years after the unauthorized disposaI first occurred. Othervvise, it may be time barred. Of particular importance to Hawaiians is the fact that Congress in 1992 specifically waived the federal govemment's sovereign immunity or self protection in regard to the unauthorized operation of open dumps and nonconforming solid waste disposal facilities on federal property, so pollution from federal facilities is now subject to a citizens suit, to the same extent as if the violation occurred on private land. Before taking legal action against dumpers to force the closure and elean up of open dumps, citizens seeking to prosecute their claims under federal law must first give 90 days advance notice to the polluters, and to the Environmental Protection Agency and Hawai'i Department of Health. This mandatory waiting period provides a window of opportunity for polluters to bring their operations into eomplianee with the law. It also affords the EPA and Hawai'i DOH the option to go to court and file an enforcement aeīion against the violators within 90 days. The EPA may also issue administrative enforcement orders during this waiting period; however, such agency action will stop the flling of a citizens' suit only if the polluter is diligently removing the illegally disposed wastes while the administrative order is in effect. Hawai'i has two state laws whieh, when combined together, ean also be used by citizens to shut down and elean up open dumps. In 1986, the legislature enacted a law whieh allows citizens to sue to enjoin unpermitted or

out of eomplianee development projects. This law specifically authorizes actions against persons who are involved in the operation of open dumps, as they are by definition sites where waste has been disposed without a DOH permit, or in non conformance with a permit eondition. Because Congress waived sovereign immunity for open dumps and nonconforming disposal facilities on federal land, federal agencies must also comply with Hawai'i law. Citizen prosecutors may seek a wide range of remedies against polluters implicated in open dumping activities, including installation of pollution detection equipment, pollution control devices, and monitoring of the en\1ronment. In order to overcome the barriers to justice imposed by the cost of maintaining such lawsuits, Congress and the Hawai'i legislature have granted to Courts the power to order polluters to pay successful plaintiffs for their reasonable attorney fees and costs. The federal law also specifically allows a prevailing or substantially prevailing party to recover expert witness fees, whieh in environmental cases ean be quite expensive. Under Hawai'i law, the Court must award reasonable attorney fees and costs to a successful citizen plaintiff; payment is not discretionary. Federal and state laws that allow for citizen suits against dumpers are more than just tools to protect the environment — protecting ourselves from this type of polluhon ean uplift loeal pride and combat negative perceptions about the communities we live in.

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