Waste company, officials admit guilt in 2011 spill

Waste Management of Hawaii and two top executives entered guilty pleas to misdemeanor charges Friday in a plea deal with U.S. attorneys in a case involving the spillage of millions of gallons of contaminated stormwater from the city’s only municipal landfill into the ocean in January 2011.

The company pleaded guilty Friday to two misdemeanor charges of violating the federal Clean Water Act on Dec. 19 and again on Jan. 12-13 by having its contractor pump contaminated stormwater from the landfill cell E6 "into an open manhole of a large pipe that ultimately flowed to three outfall pipes that discharged to Hawaii’s coastal waters."

The company agreed to a $400,000 criminal fine pay­able to the U.S. District Court clerk, and an additional $200,000 in restitution. Of the $200,000, half will go to the Ko Olina Community Association and the other half to the Malama Learning Center for environmental programs.

Joseph Whelan, 64, the company’s vice president and the landfill general manager, and Justin Lottig, 36, the facility’s environmental protection manager, each pleaded guilty to one misdemeanor count of negligence for the December incident only, and will each pay $25,000.

The plea agreements, made before U.S. Magistrate Judge Kevin Chang, eliminate the need for a trial that was scheduled for Aug. 4. A sentencing hearing will take place Oct. 26.

With felony charges that could have led to heftier fines and major prison time no longer hanging over the employees, defense attorneys said they are feeling a sense of vindication that they took the right actions when major storms on Oahu caused rainwater from the mountain above to flood a segment of the Wai­ma­nalo Gulch Sanitary Landfill.

"There was no intentional criminal misconduct in connection with anything that we did," said William McCorriston, Waste Management attorney. The actions taken, while technically a Clean Water Act violation, were heroic and averted "a potentially disastrous situation" by diverting the flow away from the Hawaiian Electric Co. Kahe Power Plant next door.

"Out of this construct of negligence, we accept the responsibility on that basis."

Lyle Hosoda, Lottig’s attorney, said his client and his family are trying to move on.

"Being investigated and then criminally charged for his conduct while performing his best to manage the landfill and protect the environment during an aberrant and unprecedented storm has been extremely frustrating and challenging," Hosoda said in a statement.

Joachim Cox, Whelan’s attorney, also applauded the outcome of the case. Whelan and Lottig have remained on the job since the flooding "and have been very successful for the past 41⁄2 years."

Prosecutors dropped felony charges in a 13-count indictment that alleged that the company and employees knowingly committed violations of the U.S. Clean Water Act and then conspired and made false statements to the state Health Department and the federal Environmental Protection Agency.

Waste Management would have faced a maximum fine of $500,000 for each count. Whelan would have faced a maximum of three years in prison for each count stemming from the illegal discharges.

Lottig would have faced a maximum sentence of five years in prison for each count of conspiracy and of making a false statement to government agencies.

Blood vials, syringes, raw sewage and sewage sludge were among the things discovered along the beaches at Ko Olina Resort and elsewhere along the Wai­anae Coast when they were forced to shut down in January 2011 after the overflow moved down from the landfill and spilled hundreds of millions of gallons of contaminated stormwater into the ocean.

The Ko Olina community, as well as other Wai­anae Coast leaders, has tried unsuccessfully to get the city to shut down the landfill.

Officials with Mayor Kirk Caldwell’s administration had no comment on the plea deal Friday.

The U.S. Attorney’s Office also had no comment, citing the need for confidentiality until the case was completed.

With all three parties agreeing to the deal, a motion filed by the defendants charging Assistant U.S. Attorney Marshall Silverberg with prosecutorial misconduct was dropped.