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Deputy Director of Health Gary Gill told Civil Beat last week that the state released stormwater from Waimanalo Gulch Landfill with the approval of the federal Environmental Protection Agency.

While the state Department of Health didn’t need EPA approval for such a decision, the statement was important because it implied there was consensus about the threat of catastrophic failure of the landfill and the need to pour contaminated water into the ocean.

Pumping untreated stormwater “was done with the approval of the Department of Health and the Environmental Protection Agency to avoid the potential of a greater disaster,” Gill told Civil Beat. The comment came in response to a question about the the likelihood of enforcement action against the city or landfill operator Waste Management for stormwater permit violations.

“It’s not likely that we would enforce against a permit violation for something we authorized,” Gill said.

On Monday, an EPA spokesman called Civil Beat to say the agency had given no such approval because it had not been consulted before the decision was made. A second EPA official said it’s unlikely the state will be punished for its decision, however.

“We weren’t involved in that. We didn’t have a hand in that decision,” said Dean Higuchi, EPA press officer for Hawaii and the Pacific Islands. “That kind of just happened. When we got there, it was happening, and it’s what we had to react to.”

Higuchi said the EPA’s on-site coordinator didn’t step off a plane in Honolulu until noon on Saturday, Jan. 15, about 48 hours after the state told landfill operator Waste Management to begin pumping the water from a lake that developed atop the landfill.

Pumping operations stopped on Jan. 16, the day after EPA arrived.

Civil Beat attempted to reach Gill for his response. Gill did not respond, but Environmental Management Division Chief Stuart Yamada called in his place.

“I can tell you for a fact, what EPA says is correct. Their on-scene coordinator did not actually arrive until Saturday,” said Yamada, whose division falls under Gill’s Environmental Health Administration on the .

Yamada said there was an EPA staff person on-island before that, but that person was not involved in the decision to pump and discharge the untreated stormwater.

“I don’t think there’s any disagreement on behalf of EPA that that’s what they would have done themselves,” Yamada said. “I don’t think there’s any dispute.”

Higuchi of the EPA acknowledged that the state was stuck between “a rock and a hard place.” But he said his agency could not say whether it would have made the same decision.

“We can’t Monday-morning quarterback at this point,” he said. “A decision was made by the Department of Health to avoid at that point what they thought was a threat of catastrophic failure.”

Higuchi said the EPA felt the need to clarify its role after environmental watchdog contacted the agency to inquire about the decision.

“We were put on the spot, ‘Did you order this?’ and the truth of the matter is, we didn’t,” Higuchi said. “Maybe some miscommunication on Gary’s part, maybe some miscommunication on our part, but either way, we weren’t asked the question.”

The confusion could affect the working relationship between the EPA and the state. Higuchi said it caused some “awkwardness” that has people on both sides scrambling to avoid hurt feelings.

The federal government is tasked with enforcing the Clean Water Act. But the EPA delegates that responsibility to state agencies like the Hawaii Department of Health. With that responsibility comes federal grant money to administer the programs.

In its enforcement role, the state oversees the city’s stormwater permit. So Gill didn’t need a green light from the EPA to release the water.

However, Higuchi said, the stormwater discharge authorized by the state is “still subject to enforcement” — meaning potential fines. Asked about the roles of all the parties, Higuchi said the state and federal governments are together the regulators of the landfill, while the City and County of Honolulu and Waste Management are those being regulated.

EPA Region 9 Waste Division Director Jeff Scott told Civil Beat it’s exceedingly unlikely that the EPA would penalize the state for the decision.

“We wouldn’t take enforcement action against the Department of Health for approving the release of stormwater runoff in that case,” he said. “That isn’t the way it works.

“I think it would be more about, ‘How’d you let this happen in the first place?’ as opposed to, ‘Did you make the right decision in the moment?'” Scott said.

Scott said any conversation about the decision or the events leading up to it would likely come in the context of the ongoing relationship between the state and the federal government. The parties talk regularly about “performance issues,” he said.

He said the relationship remains a positive one and that the response to the spill at Waimanalo Gulch has been “a good demonstration of people working well together.”

Higuchi, the agency’s spokesman, agreed.

“As a whole, whether this situation or any situation with the state, it’s a partnership,” he said. “We’re there together doing what needs to be done.”