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county eventually received federal funds to build the current plant in Hilo. The Public <br />Trust Doctrine is a whole other range of legal exposure the county faces. <br /> <br /> He said the state Department of Health waves their magic wand and grants <br />administrative waivers. An administrative waiver is no protection under the CWA. The <br />county has ongoing violations, not only for lack of an NPDES permit for the sump being <br />used, but also because the treatment plants are not producing the R-2 water as originally <br />designed. The county is in violation of the CWA every single day, and the DOH cannot <br />protect the county. <br /> <br /> Commissioner Fritz asked Director Kucharski about the sump. Director Kucharski <br />said they have a state discharge permit, not an NPDES permit, and that the county is <br />meeting all of their discharge standards. The permitting obligations have been delegated to <br />the state, and DEM is complying with all state requirements for permitting. <br /> <br /> Chair Bennett said he wrote to the previous DEM director years ago and asked if the <br />water going into the sump was disinfected. She wrote back and said they are not required <br />to disinfect it because they had a DOH waiver, which means undisinfected wastewater went <br />into the sump and eventually into the harbor. It taught him vividly that the state DOH <br />cannot be relied upon to do the right thing or even to follow the law. Every impaired water <br />body out there should have the TMDL program. The law requires it. The question on the <br />agenda is whether the EMC is going to recommend to DEM that they get an NPDES permit <br />for the proposed SAT ponds. <br /> <br /> Director Kucharski said the EPA is mandated to enforce the CWA and is well aware <br />of the county’s discharge. At this point in time, the county’s discharge into a sump does not <br />require an NPDES permit. If the situation changes after the Supreme Court reviews the <br />Maui case, the county will review what it is required to do to be in compliance with the <br />state and federal laws applicable to their operations. <br /> <br /> Chair Bennett said the Ninth Circuit’s decision is law today, and Director Kucharski <br />said the Ninth Circuit is not the U.S. Supreme Court. Until such time as the legal process is <br />completed, it is a decision under appeal. Until such time as the case is resolved, it is his <br />opinion that it is not the law of the land. <br /> <br /> Mr. Holmes said the Maui County Council is considering not going forward with <br />their appeals of the case and is reconsidering their legal strategy to continue to fight. They <br />have lost repeatedly and have had to pay. The new mayor has committed that they will <br />only use their injection wells in an absolute emergency. However, it is the law of the land <br />today that an NPDES permit is needed. <br /> <br /> Chair Bennett asked the commissioners if they were prepared to make a <br />recommendation to DEM that they seek an NPDES permit for the proposed SAT ponds. <br />Commissioner Pequeño said he would need more information on the current permit and <br />how it lines up with the requirements for an NPDES permit. He is not sure how getting an <br />NPDES permit would improve the situation. Chair Bennett said the SAT ponds will be the <br /> <br /> <br />