Feds set penalty for Pacific Energy in wastewater discharge violations
Pago Pago, AMERICAN SAMOA — After discussions with US Justice Department officials, Gov. Lolo Matalasi Moliga withdrew his comment letter, which opposes some provisions of the Consent Decree agreement between the federal government and Pacific Energy, the Terminal operator of the ASG owned tank farm in Utulei.
USDOJ and the U.S. Environmental Protection Agency (EPA) announced in July that the agencies had entered into a Consent Decree with Pacific Energy South West Pacific, Ltd. related to the company’s violations of the Clean Water Act.
Under the decree, Pacific Energy will pay $300,000 in a civil penalty and will take action to protect Pago Pago Harbor by eliminating unauthorized wastewater discharges from the Terminal. Pacific Energy also will take steps to return the terminal to compliance with Clean Water Act sampling and reporting requirements. (See Samoa News edition July 23rd for details.)
The federal government provided a 30-day comment period — July 28 to Aug. 27 — to receive public comments. USDOJ documents filed Oct. 16th with the federal court in Honolulu, which is overseeing the case, shows that the only comment received came from the governor on behalf of ASG.
In an Aug. 27th four-page comment, Lolo provided concerns and comments, saying that he objects in part to the Decree since “it does not put forth adequate and contemporaneous relief to the people of American Samoa who are most affected by the violate conduct of Pacific Energy (PE)”.
“The illegal discharge of pollutants for which PE is charged with committing is within close proximity of several public swimming areas,” according to a copy of the governor’s letter to USDOJ.
“Additionally, local subsistence and sport fishermen frequent the reefs in the immediate area. The proposed relief fails to adequately address our concerns,” the governor wrote and cited ASG’s concerns and objections with provisions of the Decree.
Among the governor’s objections is the allocation of the fine proceeds in its entirety to the US Treasury.
He argued that ASG takes “exhaustive preventive measures to protect the health of our people as well as the environmental health of the waters being used and relied upon by the people of American Samoa on a regular basis.”
“The damaging effects of the discharge of industrial wastewater into the surrounding area and the reefs has lasting and damaging effects that is irreversible if immediate action is not taken,” the governor said and acknowledged that by federal law, civil penalties are allocated directly to the US Treasury pursuant to the Miscellaneous Receipts Act.
However, Lolo points out that the US Supreme Court has determined that leeway is granted, if not outright encouraged, in crafting remedies that are beneficial to the affected parties.
“I am urging that all, if not, part of these funds be diverted to fund anti-pollution programs or initiatives to prevent further harm to our people and damage to the reefs,” he wrote.
However, the governor, in an Oct. 9th letter, officially withdrew ASG’s comments, after discussions with USDOJ officials.
According to the governor, ASG “intend[s] to fully comport” with Miscellaneous Receipts Act as well as a Memorandum issued Mar. 12th by federal Assistant Attorney General Jeffrey Boosert Clark “providing guidance on oft used Supplemental Environmental Projects in civil enforcement matters.”
“We have no further comments or objects,” the governor concluded.
In filings with the federal court in Honolulu on Oct. 16th federal attorneys with the USDOJ and USEPA say that during the public comment period, they only received one-comment, and that was from ASG, which later withdrew it.
With no other objection, they requested the court to “enter the Consent Decree as final judgment of the court”. Additionally, Pacific Energy has “consented to entry of the Consent Decree without further notice.”
Until the Consent Decree is terminated, the Court will retain jurisdiction to enforce the Decree and to resolve any disputes that may arise under it, according to court documents.
And on Oct. 19th, the court granted the federal government’s request.