Plea deal pending in landfill spill

The company that runs the city’s landfill will not contest charges in a federal case involving the discharge of millions of gallons of contaminated stormwater into the ocean near Ko Olina Resort.

A tentative plea bargain reached Monday with federal prosecutors also covers the company’s top local executive.

A hearing to consider changes of not-guilty pleas by Waste Management of Hawaii Inc. and Joe Whelan, the landfill’s general manager and vice president, is scheduled for Friday before U.S. Magistrate Judge Barry Kurren.

Attorneys for all parties declined to discuss specifics of the proposed agreement Monday. But according to one source, the serious felony charges that the company and Whelan faced — conspiring and making false statements to the state Department of Health and other agencies — are expected to be dropped in exchange for not contesting a misdemeanor count of violating the Clean Water Act.

Meanwhile, the case against the landfill’s environmental protection manager, Justin Lottig, is proceeding toward a scheduled Aug. 4 trial before U.S. District Judge Susan Oki Mollway.

Attorneys for the company, Whelan and Lottig had jointly filed a motion seeking to dismiss the indictments, alleging that Assistant U.S. Attorney Marshall Silverberg had committed prosecutorial misconduct. The motion was scheduled to be heard Monday but took an unexpected turn when both Waste Management and Whelan, apparently as a result of the pending agreement, dropped out, leaving only Lottig supporting the motion.

Lottig’s attorney, Lyle Hosoda, said Silverberg’s improper actions during grand jury proceedings included injecting his personal opinion on such matters as witness credibility, asking excessively leading questions to manipulate testimony, threatening and badgering witnesses, and eliciting evidence regarding irrelevant and inflammatory matters.

"My client’s constitutional rights are being denied here," Hosoda told the court.

Assistant U.S. Attorney Thomas Brady acknowledged that mistakes were made as the case was going through the grand jury, but said "they do not rise to the level of where the entire indictment needs to be dismissed."

Mollway said she would decide later on Lottig’s motion but that, in the meantime, the parties should proceed as if the trial would begin in August.

Silverberg, after Monday’s hearing, declined to comment on the charge of prosecutorial misconduct.

Beaches at Ko Olina and elsewhere along the Wai­anae Coast were shut down for more than a week in January 2011 after storm overflow from the Wai­ma­nalo Gulch Sanitary Landfill spilled hundreds of millions of gallons of contaminated stormwater into the ocean. Waste, including blood vials, syringes, raw sewage and sewage sludge, was discovered along the shoreline.

Attorneys for Waste Management, the largest waste disposal company in the United States, and its two employees have contended in the past that the indictment handed down in May 2014 is baseless.

William McCorriston, who represents Waste Management, said the company’s employees even acted "heroically" to divert further harm and possibly even the loss of life.

The indictment cited a delay in the installation of a stormwater diversion system as one of the reasons for the massive spill. But McCorriston said that such a system was originally conceived and designed to be in operation in 2006, and that bureaucratic glitches, not of the company’s doing, delayed its construction.

The system was weeks away from being functional when the mid-January storms hit and caused the overflow, McCorriston said. It was completed that February.