Suit against Big Island Dairy settled

HILO — A settlement has been reached in a lawsuit filed against Big Island Dairy that alleged violations of the federal Clean Water Act.

The suit was filed in 2017 in U.S. District Court in Honolulu by citizen group Kupale Ookala and the Center for Food Safety and was scheduled to go to trial this month.

According to court documents filed Tuesday afternoon, the settlement requires the dairy to stop milking no later than Feb. 28, with a target date of April 30 to end all operations, although some young stock might continue to be present into May. It also details timelines for cattle removal and facility cleanups, among other provisions.

By April, the dairy should only have 400 young stock remaining, and by May those numbers should be zero.

Because of the dairy’s “potential insolvency,” the settlement states civil penalties will be levied through the state Department of Health administrative process and no such penalties will be assessed or paid in the resolution of the lawsuit.

All civil penalties collected by the DOH will be paid to an “appropriate supplemental environmental project or environmentally beneficial project” for the benefit of the Ookala community.

The settlement also permits Big Island Dairy to explore the possibility of selling its assets at the site to a buyer who might undertake dairying and milk processing.

The suit was scheduled to go to trial this month, but Big Island Dairy confirmed in November it would discontinue dairy and milk processing operations at its Ookala facility.

“Given the circumstances, given that they’re going out of business, it made no sense to go to trial,” said Charlie Tebbutt, the attorney representing Kupale Ookala and the Center for Food Safety in the suit.

Instead, Tebbutt said, his clients got a “firm agreement” that the dairy would close, which is the “best we could have done at trial in any case.”

His clients “got everything they could have asked for” except civil penalties a court could have imposed, but “because of the fact they were going out of business, that was … no longer a realistic possibility.”

According to Tebbutt, parties now have to wait 45 days for comments from the Department of Justice and the Environmental Protection Agency before the court can enter the order.

“It’s a clear and decisive timeline for shutting down and for the pollution to stop impacting the community of Ookala,” he said about the settlement. “For the last seven years, Big Island Dairy has been wantonly polluting the community of Ookala and the environment of Hawaii and it’s time for it to stop.”

Charlene Nishida, a founding member of Kupale Ookala and Ookala homeowner, said the settlement was “bittersweet” in that “it’s great that we were able to stand united and come together as community members and other interested parties to address the problems, because initially we were getting such tremendous runaround and no one was stepping to the table and taking responsibility for the problem.”

But for Nishida, the resolution also brings frustration. Now two years after filing the lawsuit, “it’s great that we’re finally getting some action,” she said, but added it’s frustrating because the terms of the settlement were “dramatically diminished” because of the dairy’s potential of bankruptcy.

“So we were put in a position where, because of that, we had to make concessions we would have not wanted to, but our hands were tied. … In no way (does) the consent decree and what we agreed to accurately compensate the community and the state and the water for the damage that has been done. So it’s very frustrating because in essence, they’re walking away and leaving the mess behind them.”

The dairy, owned by Derek Whitesides and Steve Whitesides since late 2011, is located on land leased from the state.

Derek Whitesides declined to comment when reached by phone Tuesday afternoon.

Residents of Ookala have long complained about releases of manure-laden water from the dairy into the nearby gulches that run through or next to the community.

A discharge in May released more than 2 million gallons of rain and wastewater during a period of three days, and in August, heavy rain from Hurricane Lane caused a wastewater pond at the dairy to overflow, sending untreated effluent into a nearby gulch.

On Dec. 24, Big Island Dairy discharged nearly 600,000 gallons of wastewater into Kaohaoha Gulch.

The DOH issued the dairy fines of $91,000 on Dec. 4 for three separate spills between April and May. The department fined the dairy $25,000 in May 2017 for unlawful discharge of wastewater.

Email Stephanie Salmons at ssalmons@hawaiitribune-herald.com.