Monday, June 26, 2006

And Now, For Something Sort of Different . . .

Ah, yes, amidst all the Blakeslee Breakthrough Proposal hoopla, perhaps we have forgotten The Los Osos 45? If so, you need to pick up a copy of this month’s The Rock and read their stories. If you want to see the real human toll that the various Dreamers wished to inflict on their neighbors when they emailed Roger Briggs at the RWQCB before the recall was even certified demanding he rain fire and brimstone down upon this community, well, The Rock’s interviews will give you an up-close and personal look.

What the hapless 45 have been required to do is submit their “briefs” explaining whether they want their “trials” to continue as is (with “legally tainted” prosecutors and staff and board, or whether a new prosecutor would be O.K. or . .. . .

Below is the CSD’s “brief.” They requested and got CDO “designated status” along with the Los Osos 45. The County was asked to stand with its citizens as in “Interested Party” or request “Designated Status” and they stood silent and did nothing. (I know, it does come as a surprise that everyone who lives in Los Osos is still a taxpaying citizen of the COUNTY, can you believe it? And, need I add, that those folks who are thrilled with the possibility that the CSD will be dissolved and The County will take over, I would suggest they read the issues raised in this brief and remember that County Counsel Cash Wyatt could have written this brief as a Designated Party on behalf of a handful of beleaguered COUNTY citizens, but . . . didn’t.)

Then, following the brief, since we’re still into Things Legalish, a list of the various lawsuits the CSD is involved in. The cases in bold are ones the CSD filed. The rest, are cases brought against the CSD, ones they are defending. My favorite is the Pre-Recall Los Osos Taxpayers Association case which, among other things, complains about the money being spent by the CSD on lawyers and does so by suing the CSD so they have to spend money on . . . lawyers.

Doncha love it!

June 26, 2006
Via facsimile (805) 543-0397 and electronic mail
Michael Thomas, Assistant Executive Director
Central Coast Water Board
895 Aerovista Place Suite 101
San Luis Obispo, CA 93401
Re: Proposed CDO's/Los Osos and Baywood Park Residents
Dear Mr. Thomas:
The undersigned represents the Los Osos Community Services District (“District”), a Designated Party in the above-referenced matter. This letter is submitted pursuant to Michael Thomas’ May 18, 2006 letter memorializing the briefing schedule on due process issues ordered by Chairman Young during the status conference on May 11, 2006.
Mr. Thomas’ letter requests responses to five (5) questions, all of which will be answered in detail below. However, for clarity, the “short answers” are:
1. Yes, the Prosecution’s case must be stricken entirely.
2. Yes, if the Prosecution starts over, so does the production of evidence.
3. Yes, if the Prosecution presents a “supplemental case,” the Designated Parties should have the opportunity to supplement their cases as well.
4. Yes, common sense dictates that if the Prosecution begins anew then the defense begins anew as well.
5. The District has no personal issues that require accommodation at this time.
In addition, and as will also be further explained below, the District contends that all of the CDO prosecutions must be dismissed and, if necessary, commenced again and that those matters can neither be prosecuted by a team that includes senior RWQCB staff nor adjudicated by RWQCB members Young, Shallcross, Press, or Hayashi.

In late 2005 and into 2006, the RWQCB brought an Administrative Civil Liability (“ACL”) action against the District for alleged violations of a Time Schedule Order and basin plan prohibitions. Such ACL action was adjudicated by RWQCB members Young, Jeffries, Shallcross, Press, and Hayashi who, on January 5, 2006 found against the District and imposed fines in excess of $6.5 million. However, in so ruling, the Board explicitly stated that the ACL action “did not go far enough” and directed RWQCB Executive Officer Roger Briggs to pursue enforcement actions against the 4500+ individual homeowners who relied on septic systems to manage their waste.
CHAIRPERSON YOUNG: In now, because some Board Members have expressed some concern about whether this [ACL] penalty is enough.
BOARD MEMBER PRESS: I’m interested in water quality, and that is why we are instructing staff and urging staff to come back with individual enforcement actions.
BOARD MEMBER SHALLCROSS: I concur with Dr. Press. ...We don’t seem to be getting anywhere, and so hopefully going after the individual dischargers may create the political will for something to happen in a reasonable amount of time.
BOARD MEMBER HAYASHI: Yeah, I’d like to echo the same feelings from my fellow Board Members.
CHAIRPERSON YOUNG: I agree that the individual enforcement actions I think are critical. I think they have to start as soon as staff can start to process things and get them moving. It’s quite clear to me that the folks of Los Osos, in my opinion, are really not capable of addressing these issues with their wastewater disposal in a rational way.
(Transcripts of January 5, 2006 RWQCB meeting on ACL action, attached hereto)
Mr. Briggs began such prosecutions immediately, announcing on January 18, 2006 that Cease and Desist Orders (“CDO’s”) were being prepared against individual homeowners and that a Prosecution Team had been formed to pursue these actions. The Prosecution Team consisted of the following RWQCB staff: Roger Briggs, Executive Officer; Harvey Packard, Supervisor of Enforcement; Sorrell Marks, Senior Staff; Matt Thompson, Enforcement Engineer; and Lori Okun, the RWQCB’s legal counsel. According to the attached organizational chart, this means that 4 out of the 6 most senior staff members---the ones who most regularly advise the RWQCB members the most--- were named to the Prosecution Team.
Shortly thereafter, the proposed CDO’s were issued against 50 (later reduced to 45) individual septic system owners who were chosen ‘at random” by the Prosecution Team. Procedural comments were received by Chairman Young which lead to a February 28, 2006 Hearing Notice whereby briefs and evidence by all parties (including the Prosecution) were to be submitted by April 4, 2006, rebuttal briefs and evidence by all parties (including the Prosecution) submitted by April 19, 2006 and hearing before the RWQCB to be held on April 28, 2006.
At the hearing, the District moved to dismiss on due process grounds, alleging that (1) the RWQCB members who asked that the prosecutions be brought should not be the same ones adjudicating the cases, and (2) that RWQCB staff members who routinely advise the RWQCB should not serve on the Prosecution Team prosecuting cases before that same RWQCB. The District’s motion was denied.
Public comments were then received, and the Prosecution put on its case-in-chief in its entirety. Next, the District put on about half of its case before the hearing was continued to May 11 due to the late hour.
On May 4, 2006, Ms. Okun withdrew as the Prosecution Team’s counsel and the Prosecution Team requested that the May 11 hearing be continued so that they could procure new legal counsel. The stated reason is that the Office of Chief Counsel of the State Water Boards believes it best not to litigate “dual role” due process issues here as well as in pending court cases. Such letter also mentions the State Boards newly created Office of Enforcement, which is designed to remedy the due process shortcomings inherent in the Water Boards long standing enforcement protocol.
Chairman Young granted the request for continuance, but reserved May 11 for a status conference. On that day the RWQCB heard argument as to how to proceed given the change in the make up of the Prosecution Team. Mr. Thomas’ May 18, 2006 letter setting a briefing schedule on due process issues followed.
Due Process Is Guaranteed By The Constitution And Its Provisions Should Be Interpreted Broadly, Not Narrowly

In her April 27, 2006 letter to District President Schicker, Tam Doduc, Chair of the State Water Resources Control Board writes:
“Thank you for your email. The State Water Resources Control Board takes due process concerns very seriously. While I cannot actively intervene in the on-going process before the Central Coast Water Board, I have relayed your concerns to the Regional Water Board staff. I have also requested that they carefully consider all procedural requests (such as your request for continuance) and ensure that their hearing procedures protect the due process rights of all individuals.”
Chair Doduc’s view is certainly consistent with the 5th Amendment to the U.S. Constitution (applied to states via the 14th Amendment) which states that, in relevant part, “[n]o person shall be …deprived of life, liberty, or property without due process of law.” From a procedural perspective, this constitutional right simply means that that the government must ensure a fair decision-making process when it seeks to deprive an individual of life, liberty or property. Due process always requires a relatively level playing field, the “constitutional floor” of a “fair trial in a fair tribunal.” In other words, a fair hearing before a neutral or unbiased decision-maker. Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90 (citing numerous U.S. Supreme Court due process decisions).
Such constitutional protections have been interpreted broadly in favor of jealously guarding due process rights. As applied to administrative hearings, due process:
“…also demands an appearance of fairness and the absence of even a probability of outside influence on the adjudication. In fact, the broad applicability of administrative hearings to the various rights and responsibilities of citizens and businesses, and the undeniable public interest in fair hearings in the administrative adjudication arena, militate in favor of assuring that such hearings are fair.” Nightlife Partners, supra (emphasis added)
Accordingly, the legal standard in the instant CDO proceedings is for this RWQCB to assure not only actual fairness but also the appearance of fairness and favor the protection of rights over concerns for expediency and making political statements.
The Instant CDO Actions Must Be Dismissed And Any Others Started Anew
Here is a snapshot of where we are in the current process: the Prosecution Team has presented its case and the responding parties have begun to put on their defense; therefore, the relevant inquiries to be made are (1) whether this RWQCB can assure that the process has, to date, appeared and actually was fair, and (2) whether this RWQCB can assure that the process going forward will appear and actually be fair. Each of these is addressed, in turn, below.
The Process To Date Has Been Inherently Unfair
As noted above, the decision to initiate prosecution of the individual septic system owners was made by this RWQCB on January 5 when it directed Mr. Briggs to begin such process. That is tantamount to a superior court judge telling a District Attorney which citizens to make defendants and which defendants to take to trial before that very same judge. It appears unfair and is actually unfair because the adjudicative arm of the government must be kept separate from the prosecution arm in order for fairness of process to occur. Withrow v. Larkin (1975) 421 U.S. 35, 47 In this case, four RWQCB members crossed the line by straying from their role as adjudicators and openly directing which individuals were to be prosecuted before them.
In addition, the secret “random” method by which the first “lucky 50” were selected to be prosecuted may appear “fair” in the sense that all 4500+ septic owners had equal opportunities to be “spared” from the first round of prosecutions, but in practice the process is actually unfair from the perspective that the Prosecution Team has stated that all 4500+ prosecutions will be “the same” and all brought between now and 2010 (end of the “cure period”). That means that the “cure period” given to the first CDO recipients will be longer than that given to the last ones and that the interim requirements imposed on the first round of CDO recipients will last for 3-4 years, while those same interim requirements will be imposed on the last wave of CDO recipients for a few weeks.[1] (Footnote 1: There are other problems with the "random" selection, phased prosecution, and interim requirements aspects of these proceedings that go beyond due process and into the realm of civil rights violations and illegal assessments; however, such issues are beyond the scope of the Chair's requested briefing here and are only mentioned to ensure that they are not considered waived)
Compounding this problem is the makeup of the Prosecution Team. In the case of Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810, the appellate court held that it is violative of due process when the city attorney that routinely advises the city’s personnel board also prosecutes before that board…the reason being is that such situation creates an appearance of bias and unfairness. The holding in Quintero was recently applied to the SWRCB and its attorneys in a Sacramento Superior Court Case entitled Morongo Band v. SWRCB. In Morongo, the trial court held that a SWRCB attorney cannot act as an enforcement attorney before the SWRCB while concurrently acting as legal advisor for the SWRCB---even if the two matters are unrelated.
The rationale behind the holdings in both Quintero and Morongo is that
“For the Board to allow its legal advisor to also act as an advocate before it creates substantial risk that the Board’s judgment in the case before it will e skewed in favor of the prosecution. The chance that the Board will show a preference toward [the deputy city attorney], even ‘perhaps unconsciously’ is present and unacceptable.” Quintero, supra, at 817.
Thus, at a minimum in the case at bar, because Ms. Okun regularly advises this RWQCB and was a member of the Prosecution Team that prepared briefs submitted to this RWQCB and presented the Prosecution Team’s case to this RWQCB, the appearance if not the actuality of unfairness is implied as a matter of law. Simply put, this RWQCB has now been unfairly influenced in these proceedings by having its counsel serve as prosecutor.
However, in order to be consistent with the legal mandates stated above, this RWQCB must go one step further than that taken by the courts in Quintero and Morongo; namely, to require that when and if new prosecutions are initiated that senior RWQCB staff (e.g. Mr. Briggs, Mr. Packard, and Mr. Thompson) be precluded from participating in the prosecution. The rationale for such conclusion is the same as that applied in Quintero and Morongo; namely that ANYONE, an attorney or otherwise, who regularly advises the RWQCB should not be allowed to prosecute before that same RWQCB. “It would only be natural for Board members, who have looked to [the deputy city attorney] for advice and guidance, to give more credence to his arguments when deciding plaintiff’s case. Whether or not they actually did is irrelevant; the appearance of unfairness is sufficient to invalidate the hearing.” Quintero, supra, at 816. See also Howitt v. Superior Court of Imperial County (1992) 3 Cal.App.4th 1575, 1585; Civil Service Commission v. Superior Court (1984) 163 Cal.App3d 70, 78, fn.1
Executive Officer Roger Briggs advises the RWQCB more often than any other person. Senior staff members Harvey Packard, and Matt Thompson advise the RWQCB often. Presumably, the RWQCB members trust these three senior staff members, otherwise they would not be senior staff. Thus, according to Quintero, it would be natural for this RWQCB, which has looked to senior staff for advice and guidance, to give more credence to their arguments when deciding the CDO matters. Whether or not the RWQCB members actually do or not is irrelevant; the appearance of unfairness is sufficient to invalidate the hearing. Coupled with the fact that three of the top six advisors to the RWQCB (four if one counts Ms. Okun) are on the Prosecution Team in this instance, the appearance of manifest unfairness is not just present---it is grossly apparent.
In sum, Quintero and Morongo prompted the SWRCB to create a new Office of Enforcement and prompted Ms. Okun to withdraw from the Prosecution Team here. Quintero and Morongo strongly support the legal conclusion that the CDO process at bar has, thus far, violated the due process rights of the accused. Similarly, this RWQCB should follow Chair Doduc’s guidance and Supreme Court case law and interpret Quintero and Morongo liberally so as to apply its rational to those who are in a position of trust and regularly advise the RWQCB regardless of whether they are attorneys.
The RWQCB Cannot Unring The Bell
As to whether the CDO enforcement actions can move forward and not be violative of due process, the answer is simple: no, because the RWQCB cannot unring the bell. The Prosecution Team has completed its case-in-chief, so the influence precluded by Quintero and Morongo has already taken place…and no matter how this RWQCB proceeds (short of dismissal) that influence cannot be negated.[2] (Footnote 2: For this reason, allowing the Prosecution Team to supplement its case is pointless, but if that is the Chair's ruling, then common sense fairness dictates that the designated parties should be allowed to respond to such attitional materials) Thus, if these enforcement actions proceed to decision, they will be legally identical to the ones presented in Quintero and Morongo and ultimately suffer the same fate.
In addition, a realistic side effect of moving forward is, in the words of Lori Okun in her May 4, 2006 letter:
“A rehearing would come only after days of wasted ‘first round’ hearings before the Central Coast Water Board, countless hours of wasted staff time, and several years of litigation.”
Thus, it certainly appears that a tremendous amount of public and private resources could be saved by dismissing the instant actions now.
Current RWQCB Members Cannot Adjudicate Future CDO (Septic System) Enforcement Actions
Not only do the above facts and applicable law compel dismissal of the instant CDO actions, it also precludes current RWQCB members from adjudicating future ones. By directing Mr. Briggs to prosecute and having been influenced by trusted staff members wearing their prosecutorial hats, RWQCB members Young, Shallcross, Press, and Hayashi have been irreversibly tainted in favor of the prosecution and, therefore must recuse themselves from this and future enforcement actions against the Los Osos septic system owners.
To honor the right to due process, a decision-maker MUST---not “may” or “should”--- be disqualified when his role as a non-partisan player has been compromised. Nightlife Partners, supra, at 98. Here, RWQCB members who initiated prosecution and have been, as a matter of law, unduly influenced by the Prosecution Team are, without question, compromised as neutral decision-makers.
From a statutory perspective, there are no laws directly addressing the disqualification of biased administrative decision-makers; however, there are rules governing disqualification of judges that are applicable here by analogy because RWQCB enforcement proceedings are quasi-adjudicative in nature and, therefore, the RWQCB’s are obligated to assure the same constitutionally-based due process protections as the courts.
28 U.S.C. Section 455 requires that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” California Code of Civil Procedure Section 170 states that no judge shall preside in a case in which he is not wholly free, disinterested, impartial, and independent. If a reasonable person, aware of all the facts, would fairly entertain doubt concerning a judge’s impartiality, disqualification is mandated, and the existence of actual bias is not required. CCP Section 170.1(a)(6)(C) In this case, given the statements of the RWQCB members quoted above coupled with the undue influence of the Prosecution Team, it is certainly reasonable to question whether these four RWQCB members are giving each of the 45 CDO respondents fair and unbiased consideration. Nor can it be said that the four RWQCB members are independent arbiters because they, themselves, initiated the prosecutions. Combined, these circumstances certainly create enough doubt as to impartiality and, as such, disqualification is mandated.
In Schmidt v. United States 115 F.2d 394, 398 (1940) the court concluded that the trial court judge should have recused himself when an affidavit alleged that the judge was informed in advance of the facts by the prosecutor and expressed a prejudicial opinion regarding the facts of the case an alleged guilt of the defendant. Under these circumstances, the court reasoned that “even a judge may not put aside the propensities of human nature as easily as he does his robe.” In order to eliminate the possibility of any unfairness, the court remanded the case for further proceedings before another judge. Here, the prejudicial comments by RWQCB members at the conclusion of the ACL action in January, 2006 clearly were slanted toward liability of the individual septic system owners; accordingly, evidence of bias exists and due process is violated absent recusal of the RWQCB members.
Accordingly, because the adjudicators of the CDO actions either appear to be or actually are biased, they must recuse themselves from hearing enforcement actions relating to Los Osos septic systems.
For all of the foregoing reasons, the instant CDO actions should be dismissed, senior staff should be barred from prosecuting future enforcement actions before this RWQCB, and the RWQCB members who have participated thus far in the instant proceedings should permanently recuse themselves from current and future adjudication of enforcement actions involving septic systems in Los Osos.
Very truly yours,

Final Posting:

Los Osos CSD Litigation (Government Code, §54956.9(b).) as of June 19, 2006

Pre Recall
Los Osos Taxpayers Association v. LOCSD in SLO Superior Court – (public waste) Prop 218

Corenbaum v. LOCSD, Bruce Buel, Bruce Pickens (personnel) in SLO Superior Court

LOCSD v. Golden State et. al. (basin adjudication) in SLO Superior Court

LOCSD v. Corr, eminent domain action (sewer line easement) in SLO Superior Court

Post Recall
Taxpayers Watch, Joyce Albright, Robert C. Crizer, Christopher Isler v. LOCSD
Appeal (CV051012) – Measure B

RWQCB v. LOCSD in SLO Superior Court (CV051074) – Injunctive Relief Measure B

Taxpayers Watch, Joyce Albright, Robert C. Crizer, Christopher Isler v. LOCSD, Steve Senet, John Fouche, Chuck Cesena, Lisa Schicker, Julie Tacker in SLO Superior Court (CV050862) – public waste

Barnard/Monterey Mechanical v. LOCSD - contractor action against LOCSD in SLO Superior Court


Montgomery Watson Harza v. LOCSD in SLO Superior Court (false claim)

Merrill v. LOCSD in SLO Small Claims Court (SC060095) (prepaid assessment challenge)

Sturtevant v. LOCSD in SLO Small Claims Court (SC060026) (water meter dispute)

Parker and Hawley v. LOCSD (public records act writ of mandamus)

LOCSD v. SWRCB (SRF) in Sacramento Superior Court (05AS05422) – breach of contract

LOCSD v. RWQCB, as designated party to individual CDO’s


Anonymous said...

Funny. When I wrote my letter to Roger Briggs "inflicting the human toll," I did so knowing full well I was in line to be next. I think it was very clear the whole PZ was on the way to receiving CDO's, not just the "hapless 45." And I'm certainly not a Dreamer. These continued attempts to label, separate, blame, and divide just further proves Ann you're part of the problem, certainly not part of the solution.

Anonymous said...

Annon...You asked for a CDO? Perhaps you should call that lovely French couple, the Collin's, they're in their 80's, they immigrated to their Los Osos home on 14th St.years ago, where they plan to live out the remainder of their lives. Why don't you offer to defend them from the rath of Roger Briggs. You aren't next; this "test" of 45 has flopped! The 45 will live in fear, for their home values have dropped, they are defensless against the government rath, thank goodness the LOCSD became a "Designated Party", these 45 don't have the finacial resources to defend themselves, this way, you (we all)pay for their defense through the sewer fund, we'll pay for that and your efforts to dissolve the district, for a very long time.
I pitty the fool who asked our community be fined, you are shameful.

Anonymous said...

Perhaps that poor couple, and all those receiving or are about to receive CDO's should ask why Roger Briggs came to this point. The current CSD BOD are the one's who should truly hang their heads in shame.

Anonymous said...

Maybe you should start at the beginning. The PZ itself was created in the most biased, unfair, and really illegal way possible. Proving the utter contempt that water board staff had for the people of Los Osos. And the corruption inherent in county / water board politics.

There is no way any PZ could be declared that did not cover all of Los Osos in its entirety. The law is clear on that: NO DISCHARGE into a National Marine Estuary. No exceptions. NO DISCHARGE when you are surrounded by impaired / distressed open bodies of water. Waivers can be made but not with the presence of a listed National Marine Estuary. This is the original clean water act.

Bottom line: per the MOU between the county and the water board both Roger Briggs and the County Office of Permits have acted illegally in this matter. If, as Dr. Press stated, the issue is water quality / clean water. Then why aren't they enforcing the law evenly. In Morro Bay and Cayucos, in San Luis Obispo, in Pismo Beach etc. They are not and have not and so the stipulations in the letter Anne published do not go far enough.

PublicWorks said...

boy, another legal eagle,

Pismo's been fined, CMC's been fined, SLO's been fined, MB & Cayucos discharge into the ocean, not an 'estuary'. Plus, all of those town's have a higher level of treatment.

Are you really so sure you want the RWQCB to enforce evenly???

Shark Inlet said...

I've argued for some time now that the RWQCB has been super lenient on the citizens of our community. As Publicworks points out, if you compare the fines per gallon of discharge meted out on CMC, SLO, Pismo and even the Monarch Grove neighborhood in Los Osos, those in the PZ have been given a free ride on the order of hundreds of millions of dollars.

Honestly, they do seem rather calous to the plights of individuals, but when you remember the long history and the fact that we're still polluting and that we made the choice to continue to pollute for the forseeable future instead of continuing with a less than fully perfect WWTF, it makes much sense. Essentially we asked them to take these actions. It wasn't the bitter dreamers who caused this problem, it was Steve, Al, Julie, Lisa, John, Chuck and Steve who asked for the fines. If you don't think they asked for the fines, you might want to speed along LOVR some day and when you are pulled over, tell the CHP "I don't think you have the authority to give me a ticket."

The legal argument from Biggs and Onstot won't save folks from the CDOs. How much did we have to pay to get this work done?

Anonymous said...

Gee "public works" you must really work for public works?
Small minds, big jobs ... LOL

The Morro Bay / Cayucos "leach field" lies right in front of the entrance to Morro Bay. Hmmmm ... now what happens when the tide rolls in? They are most definitely in violation of section 301h as are the other towns with ocean out falls. But they are in a far, far worse situation because of that Natioinal Marine Estuary. Again their system was illegal almost from the day it began operations. It received a "waiver" in 1994 for city populations below 50,000. The NRDC has said "NO MORE WAIVERS, NO MORE DISCHARGES, " Because its the LAW!

Hmmm you must get lots of tickets for not buckling your seat belt? LOL

Anonymous said...

Fines? 30,000 for discharging into a protected National Marine Estuary? Where do you think all those impaired / distressed creeks flow "sharky". So bad was CMC that the guy in charge of operating their facility conveniently left out reporting some major spills. He was terminated and the warden was left making a public apology.

Fines for MB/Cayucos were for spills. NOT for primary treated effluent including solids flowing out into the ocean and then rolling back into the bay. That's right primary treated effluent. Say "sharky" you seem the type who might enjoy a swim with the seals? Why not take a dip?

They were told to do something about their primary effluent AND spills from 1983 on. In 1994 they were told that the waiver they received would sunset in 1997. Gee "sharky" can we count? Hmmmm, that's, let's see, oh, I know its almost 13 years. SOUND FAMILIAR. Maybe her honor the mayor should be fined? She is so frightened by the cost she is afraid to tell her constituents that it might cost them an additional $18 a month to barely mitigate the problem. Hmmmm...

Septic tanks do not even come close to producing the amount of toxic "flush and forget" effluent that system produces. They are compartively benign!!!

And you think they should be fined? You must have spent too much time swimming in the pollution off of Huntingdon Beach. Your brain is fogged... LOL

Anonymous said...

Higher level of treatment? Sheesh Wickham's little device produces cleaner effluent than any of those systems on their best day. That means the place closest to complying with the real law is the Los Osos firehouse.

Primary efflunet; higher level of treatment sheesh you guys must love swimming in other people's shit.

Sewertoons said...

Anon says:
"…thank goodness the LOCSD became a "Designated Party", these 45 don't have the finacial resources to defend themselves…"

Ah... so THAT'S where the pool fund is going!

Once that is gone, what is the CSD going to use for money? That's one leaky boat to be clinging to 45ers.

Shark Inlet said...

To our anonymous friend ...

Let's calculate the amount of discharge we're talking about. 200 gallons per day for each of 5000 homes is 365,000,000 gallons of partially treated sewage per year. That's a billion gallons every three years or six billion gallons since 1988. The total volume would cover the entirety of the LOCSD to a depth of 20-30 feet.

Okay, now that we've got the size of the Los Osos discharge straight ... how is the CMC spill worse? How many gallons of raw sewage equals six billion gallons of septage?

Somehow you seem to think that because the septage is relatively low in terms of nasties it is okay for our community to use septic systems ... um ... forever. Let us not forget that too many septic systems/acre and septics too close to groundwater is a receipe for for polluting the groundwater.

Mike Green said...

Sharkey bubbled:
"how is the CMC spill worse?"
Where it was discharged makes a huge difference.
Down a creek?
Into the ocean, nearshore?
Into an unused groundwater source?
I'm sorry, If this whole thing isn't the A number one poster child of what can go wrong in American government, I'd like to see the example.

Anonymous said...

Here we go again...if we supported the recall we're "anti-sewer" and want to use septics "forever". That's it for me...I will not post here again. See you at the joint meeting tomorrow night where we will be discussing alternative treatment sights (as in wastewater treatment sights). Ya know, to replace the septic tank situation.

Mike Green said...

To Anon "tank situation"
Please don't go!
Sharkey sometimes has the tact of a rock.
I liked your posts, well written and informative.
I hope you change your mind.

Shark Inlet said...

Mike ...

Why is the upper aquifer unused? Pollution from our septics. (Well, everyone but Ann would agree.) Because we have to use the lower aquifer, we have less water supply than before and we also have problems with saltwater intrusion.

Which is worse ... to dump a few thousand gallons of sewage into a creek and estuary that self-cleans within a week or so or to so pollute one's drinking water supply that it cannot be safely used?

To our anonymous friend ... I apologize if you feel my rhetoric was over the top. However, if you're going to post in this discussion you've certainly got to get a slightly thicker skin. Read what's been posted about me in the past ... please don't leave.

Your posting that suggested it was no big deal to have polluted for the past 30 years certainly seemed like you were advocating that there is no need to hurry. I strongly disagree. I don't think it prudent to willingly pollute your own drinking water. If you feel that it is important to hurry to get a sewer online, lemmie ask you a question ... how can you justify the five or more years worth of delay necessary to get a different WWTF location and technology than TriW was proposing? To me it seems like the additional 1.7B gallons of septage going into the ground could be easily avoided. Furthermore, the additional costs necessary because of the move will certainly make it far less affordable for regular folks. What's the best choice? Presumably you feel moving the sewer is wisest. Why?

Mike Green said...

Good points Sharkey, except that what I was saying is that "Where" you discarge has a difference in fines.
There are tons of examples
Exxon Valdese?. ect.
As for the safety of the upper aquifer being used for water..
A lot of places use water way worse than that, they just treat it before consumption!
As for your statement that effluent discharges into creeks "clean up in a week or two"
Pollution of creeks and waterways in California have created havoc with the ecosystem.
Ask any salmon fisherman
Or any fisherman that uses the local ocean area what he thinks about runnoff.
Heck. Look at the dead zones in the Gulf of mexico.
Caused by septic tanks?
come on.

Sewertoons said...

Does anyone out there have the approximate date when the upper aquafer became unuseable for drinking water?

Also, "runoff" can contain different things. I would not equate chemical industrial waste or an oil spill with sewage.

I'll bet no one has thought about going back to using the upper aquafer for water because it would be more costly to treat than State water would be to buy. Anyone?

Mike Green said...

The Esteemable S.Toons projected:

Also, "runoff" can contain different things. I would not equate chemical industrial waste or an oil spill with sewage.

Well said, so can you say with certainty whats causing the groundwater pollution?
Perhaps "different things?"

Never been completly studied but common sense says that we should be doing something.

Me, I'm building a little altar on top of my septic tank with a wine bar and a little TV so we can enjoy some theater.

Shark Inlet said...


500g of raw sewage (dumped, say, near Prado Road) would do little longterm damage to the creek ecosystem by comparrison to 100g of bleach at that same location.

Do you seriously doubt that septic systems in Los Osos are the cause of the elevated nitrates in the aquifer?

Mike Green said...

Sharky, Thanks for the reply!
No, I don't doubt the nitrate levels are caused by septic tanks, I thought I made that clear.

Ahem, "common sense"

I was just illuminating the uncalcuable elements in statements relating to water issues.

It aint an exact science

As for your outrageous apples and bananas example,


Sewertoons said...

Mike said:
"Me, I'm building a little altar on top of my septic tank with a wine bar and a little TV so we can enjoy some theater."

Now THAT is a GREAT idea!! Thanks for the humor and the always interesting comments!

Shark Inlet said...


I would suggest you go and have a chat with a stream ecologist at Cal Poly and ask the question about whether 100g of bleach would be more or less harmful than 500g of raw sewage.

My understanding is that the bleach would decimate the entire stream ecology for half a mile or more but the sewage would only have temporary impacts.

Churadogs said...

To all: Holey MOLEY! 24 hours after posting this, we got 22 "comments." Is this pot-bellied stove around which everyone's whittlin' and jawin'is a popular place, or what?

Anonymous Sez"Funny. When I wrote my letter to Roger Briggs "inflicting the human toll," I did so knowing full well I was in line to be next. I think it was very clear the whole PZ was on the way to receiving CDO's, not just the "hapless 45." And I'm certainly not a Dreamer. These continued attempts to label, separate, blame, and divide just further proves Ann you're part of the problem, certainly not part of the solution."

Q: Did you support the "negotiated compromise" that wasn't negotiated? If so, why wouldn't you have sent a letter to Roger saying, "Dear Rog, hold your fire, looks like the community's moving towards a compromise that may well keep the pipe laying going and result in the plant itself being moved out of town, so hold off on "punishing" the hapless citizens and get on board to help make this "compromise" work? Give your buddies up at the SWB a call and tell them to give this compromise a real chance. Wouldn't that be part of the solution rather than being part of the divisive problem?

Sewertoons seZ"I'll bet no one has thought about going back to using the upper aquafer for water because it would be more costly to treat than State water would be to buy. Anyone"

The Cleath & Assoc report on the "nasty stuff" in the upper aquifer is supposed to come in shortly (August?) That will then give us some idea if the aquifer can be blended and used or has "nasty stuff" in it to the point where it can't be used & etc. So far as I know, blending and re-use was and is planned for the upper aquifer. Anyone?

8:06 AM, June 26, 2006

Shark Inlet said...

If the nasties in the upper aquifer are severe and we can't use it again for some time, it sounds like our choices as a community to fight a sewer in the 80s and our continued stalling since then have been very unwise.

"What's the hurry? I'm just pissing in our drinking water ... no big deal." Maybe more study will reveal that we should have acted years ago before all the study.

Sewertoons said...

Regarding the upper aquifer:

I heard from a LO "old timer" that at one point in LO history, the water from it was thought to be extraordinary and was much sought after. Unless everyone was getting high on nitrates, the water must have tasted pretty good, and appears to have killed no one.

Can anyone pinpoint timewise when the upper aquifer was deemed no longer drinkable?

Sewertoons said...

Now that Shark has posted what he posted, I would like to add that it is unlikely that some prehistoric plant material has caused the current nitrates in the groundwater as Wyckham suggests in the ROCK. It makes no sense that suddenly these heretofore quiescent plant materials have begun to decay as being a more likely cause for the nitrates than the septics!

I think it is funny that Julie - who was once adamantly against blending - has hopped on board to blend! Shows how political expediency can change one's position.

Shark Inlet said...

If Wickham is saying that the nitrates have been there since the start of the 20th century ... if he's saying that it was because of plant material, he has to explain why the nitrate levels have been increasing in our aquifer but only underneath the PZ.

Or we should realize that he's just a salesman not a scientist. Maybe his device is great, but his explanation doesn't match the facts.

Next witness...

Anonymous said...

Ron's killing it over at Sewerwatch!!!

Mike Green said...

Sharkey, again I guess I didn't make myself perfectly clear, sorry
Of course pouring bleach in a creek is worse than human waste.
My point is that the fines levied on watewater treatment operators can not be compared to fining indiviual homeowners in the PZ.
Apples and banannas
for one thing the mechanism that the "water gods" use is ill suited in this case.
Hence all the "unintended consequences"
It assumes that the operator is in control of the discharge and has failed to meet requirements due to mismanagement and or operator error.
The rules that are used are known to a high degree by both parties.
This is clearly not the case here.
I'll use you for an example.
You have had no control of the wastewater discharge into the upper aquifer except with the possiblity of limiting water use, and proper septic maintenance.
For all you know your discharge may meet all the criteria of a functioning wastewater treatment plant, let's say, the one in SLO.
The "Water Gods" are making an assumption that YOU are failing to meet the requirements and that YOU need to start a remidial program.
Not only that but YOU have to start paying RIGHT NOW, while your neighbor will get perhaps a LONG bye.
Even though you have identical problems.
Inherently unfair.
Especialy to YOU.
The pumping sceme needs to go away, It's not going to do anybody any good.

Shark Inlet said...

Well that's the rub, Mike.

Even properly working septic systems, when there are too many per acre and when they are too close to groundwater will cause problems.

That is where we are today.

We've been the cause of the problem for years and we've been fighting the solutions as they come forward. What else are they to think when we kill a permitted and financed project already under construction?

Mike Green said...

My Dear Sharkey

We've been fighting the solutions?????

Yes, it could be said that a very few people around here have been "fighting" solutions.

Most people have voted on what they read in the voter pamplet.

Lies and garbage?

From the sorry beginning my friend,
We don't need fines, We need help.

Anonymous said...

Hey sharkey!

Hmmm let's see if they had build a plant like Morro Bay ..
in 1983 and it was producing primary treated effluent and
it had an ocean out fall off Montana d'oro or perhaps
a dispersion field on Broderson or some other site ...

Hmmmm can you say shit on a shingle becasue that is what would be hanging off of yours pal. ~smiles~ Yes
the salt water intrusion would be worst due to a lack of leach fields combined with more houses pumping AND the upper aquifer truly would be a cess pool.

But then, yoiu like shit on a shingle right?

Anonymous said...

Gee toons and sharkey must never have worked in a garden or been to a swamp or the elfin forest? Gee what
it fertilizer: nitrates. What is fertilzier made of? Decomposed plant matter.

Now, raise your hands if you have actually read the basin plan? Hmmm thought so...

The basin plan clearly states that Los Osos and Warden creeks are distressed/impaired due to nitrates. Produced where? Why by the croplands up stream, they (our fearless
water board staff) have made observations to that effect.

So, isn't it just possible that Dr. Wickham is right? BTW he is lousy salesman. He has given too many sludgehammers away for free to Los Osos...

Anonymous said...

Ah the upper aquifer ... well the lower aquifer is still considered rare indeed; water that is over 10,000 years
old. Pristine.

Upper aquifer not much nitrates but there are a few drugs resident resulting from a culture that medicates everything.
Nitrates? I think they were likely always there since the levels have remained fairly steady for decades now. Missing the trees that remove that stuff ... like redwoods, cottonwoods, the kind that normally grow next to wide streams ... not willows or Eucalpytus tho ..

Mike Green said...

Anon, "Eucalyptus tho"
I've got a big pine tree next to my tank
seems real heathy too.
What do you think?

Sewertoons said...

Fertilizer can also made of human poop and has been used on crops as late as the 50's in France.

Here is some more recent poop 411 (look midway down the list for relevant articles):

What's your point? The creeks don't run under our houses. The septics leach under our houses. The upper aquifer is under our houses.

The SludgeHammer "given" to the fire station, if proven to work, will COST Los Osos $4500 at the end of a year. Guess you didn't read the fine print.

Mike Green said...

S.Toons, Uh, O.K. Where do I send the One Dollar Check? 5K homes'/.5Kdollaros
equals one buck hic,,, been praying at my septic altar.

Sewertoons said...

Mike I'm with you in spirit! Cheers!!

I'm guessing we should send it to the current CSD to keep them able to pay their lawyers for a while longer…

Mike Green said...

.'. !

Anonymous said...

The Japanese have been using human poop to fertilize rice for thousands of years.

Septics do not produce the amount of solids that the Morro Bay treatment plant (circa 1983) produces. They keep most all of the solids in the first half of the tank. The sludgehammer pretty much removes that, but more importantly the solids that leach out into the leach lines.
The effluent is then filtered by some of the finest sand for filtering found world wide. Los Osos sand. No solids, no pollution. Urine (despite the nitrates) is considered fairly benign: too acidic to contain bacteria.

Morro Bay just dumps it into the ocean and in flows right into thte bay. A similar plant would either do that or leach it into the upper aquifer ... in its purest form no filtering or leaching ...

Now tri-W was better but would still have eventually created a cess pool out of the upper aquifer.

Sewertoons said...

All the wacko endocrine disruptors and chemicals we all use and take for granted have not been around for a thousand years, so I'd like to see some data on what happens to that stuff going through sand. In the quantities we push down our densly packed septics every day.

Sewertoons said...

Anon! Are you a man?
You said:
"Urine (despite the nitrates) is considered fairly benign: too acidic to contain bacteria."

Have you never had a bladder INFECTION??? I think bacteria was present in the one's I've had! If I could put bacteria in pee from the inside, does it being on the outside make it immune to infection there somehow?