Oh My Ears And Whiskers, Does Anybody In The Regional Water Quality Control Board Know What They’re Doing and Has Nobody Learned Anything From Torquemada’s Mad Hatter Tea Party And Auto De Fe CDO Debacle So Now It’s Deja Vu All Over Again?
So, I’m out of town for a few days and look what happens. I get a packet of information on the upcoming May 10th Regional Water Quality Control Board’s hearing that includes TWO draft forms of a proposed action for further prosecution of the Los Osos residents. (Apparently, it’s finally dawned on the Board that they’ve wasted a whole year ditzing around with this appalling CDO kangaroo court, The Los Osos 45 are going to be dumped overboard – Nevermind – and now they’re thinking about going to Plan B – Cleanup and Abatement.)
So, in the packet are two draft forms. One is titled “Cleanup and Abatement Order No. $3-2007-[order no] and the other is titled, “Settlement Agreement and Order.” Two distinct forms with slightly different requirements and both having sample documents attached.
On page 4 of agenda item #6 it states: “If the property owner signs and returns the settlement agreement, the Prosecution Team will not issue the clean up and abatement order.”
Once again, it APPEARS that there is a CAO which proceeds in X manner and a separate Settlement Agreement that proceeds in Y manner. But, I’m puzzled, so I write to Our Go To Guy, Matt Thompson at the RWQCB and ask, “In what way is a settlement agreement legally NOT a CAO? This statement implies that a settlement agreement is being offered INSTEAD of a CAO?”
(After all, if you’ve already been given a CAO, staff can’t later issue a cleanup and abatement order since you’ve already gotten it. And if you’ve signed the Settlement Order and it clearly states that staff can later decide to send you a CAO, then whatever you signed wasn’t a CAO. So, what IS it?)
Matt bounced my question over to Harvey Packard, Division Chief and Enforcement Officer, who replied, “The settlement agreement is a CAO. The Board could enforce the provisions of the settlement in the same way as it could for the CAO. So the options for PZ residents are to sign the settlement agreement, which is in effect a sipulated [sic; i.e. stipulated?] CAO, or they can [sic . . .] provide whatever evidence they have to convince the Assistant EO [that’s a staff member, not the Board itself who will decide] not to issue a CAO with more severe terms. The two orders are similar; the settlement has less severe requirements.”
So, there you are: The settlement agreement IS a CAO.
However, even if you’d read the official documents repeatedly, THAT little piece of critical information would have not been there. A normal citizen would have gotten this packet and concluded that he was looking at TWO documents, not ONE document carrying a misleading title
But, wait, it gets worse. On page 4 of the Item 6 discussion, it states, “A proposed settlement agreement is also attached to this staff report. The proposed settlement agreement is very similar to the one previously approved by the Board. However, to encourage more parties to settle, we have made a significant change to the settlement in addition to the above-described changes: We are capping potential penalties for violating the order at $100 per day instead of the $5,000 per day allowed by law. The settlement also allows up to three years to pump and inspect the septic tank, whereas the cleanup and abatement order requires this action within two years. Under the ‘most favored nation’ provision in existing settlements, parties who have already settled would receive the same terms.”
MOST FAVORED NATION?
Hmmm, let’s see here. Citizens are, under law, supposed to be treated equally. A citizen issued a CAO has a legal RIGHT, without prejudice, to go through various legally mandated hoops, an administrative process spelled out by the Board. Those steps aren’t provided to him on the whim of some Board Director, they’re codified by various policies and law. Therefore, until a citizen completes those legally mandated steps, he should not be considered favored or unfavored. Yet, here it is: The staff is proposing that the Board create two unequally treated class of people – under color of law – those who exercise their RIGHTS under law will be financially punished, while those who give up their rights will be rewarded financially and be considered “favored.”
What makes this so weird is this: If I refuse to give up my legal rights, decline to sign this mis-named Settlement Agreement, and instead carefully proceed through the all legally mandated steps, up to and including all rights of appeal, by what stretch of the legal imagination am I to be considered “unfavored?” I have not ignored the issued CAO. I am in full compliance with every step and requirement, , I have not refused to comply, yet I am, pre-judged on a whim, and now considered part of an “unfavored nation” and handed a pre-set worse penalty than someone who has also not ignored the issued CAOs but has chosen to give up the rights granted to him by law?
Hello? Can it be possible that The Regional Water Quality Control Board is now seriously considering creating two classes of citizens in Los Osos, thinking that will somehow help an already polarized community? Do they think that somebody’s not going to challenge that in court, thereby wasting more time and effort and money?
Or are they doing this because they’re lazy, understaffed, underfunded, want to skirt their legal obligations to observe due process so they hope to trick out a mis-named “agreement” in hopes of conning a whole bunch of people into signing while pretending it isn’t a CAO, pay no attention to the little man behind the curtain with all that fine print, heh-heh?
Please, Dear Sweet Suffering Zeus, Pluueeezzzze, say it ain’t so.
Perhaps you’d like to think this is just some kind of typo? Me too, but then there’s the April 26 official email from Matt announcing the upcoming May 10 continuation of the Mad Hatter Tea Party And Auto De Fe Public Burning of the few remaining CDO recipients ( remember those people? The Los Osos 45, who apparently are now dead and forgotten while the Board considers switching gears from CDO mode into CAO mode because as Harvey Packard is quoted in the May 3 Tribune as saying, “It is impractical to hold board hearings for all 4,300 properties in the prohibition zone.” NOW they figure that out? Now? )
Excerpt from the email:
1. The agenda for the May 10 -11, 2007 Water Board meeting:
2. A staff report discussing enforcement alternatives and the Prosecution Team’s proposed action;
3. The Prosecution Team’s proposed cleanup and abatement order (CAO);
4. The Prosecution Team’s proposed settlement agreement (in lieu of the CAO.)”
IN LIEU OF?
No, no, Matt, it’s not “in lieu of,” the settlement agreement IS a CAO. When you say something is “in lieu of,” people will think that you’re talking about two SEPARATE things, one instead of the other. That’s not the case here. One IS the other.
Again, the questions: Is this the result of incompetence, or is this another attempt to mislead people into thinking that A is not A? Are we back to more duress and coercion – Citizen A gets a hammer, Citizen B gets pudding, even though under law Citizen A & B are supposed to be treated equally?
Does anybody recall when the Grand Inquisitor came to town and started work on a “settlement” agreement with some of The Los Osos 45, that the attempt resulted in dividing The 45 and alerting the rest of the community that they were being bamboozled by City Slickers trying to trick Country Folks into believing that the Agreement was “better than” a “real” CDO and that they had better Sign Your Rights Away Or We’ll Give You A CDO, You Have 6 Minutes To Decide, But Don’t Call That Duress, No, No, and that when many signed then read the fine print, they later rescinded the agreement, or others concluded it was worse than a regular CDO and said, Hey, whatya tryin’ ta pull here?’ In short, a debacle.
Now, here we are . . . again.
TV’s Dr. Phil often says, “We create the very thing we fear.” What’s the one thing the RWQCB fears most? My guess is, A Failed Prop 218 vote. So, why is this staff and Board doing everything in their power to raise the risk of that happening? Of doing anything that can even raise the charges of illegal electioneering? Of creating this pointless “divide and conquer” strategy using misleading documents that will only raise the paranoia level past the tip point? In short, its time to ask two more Dr. Phil questions:
1) Just what the hell does the RWQCB think they’re doing?
2) How’s it working for them?
Well, here’s a Mother Calhoun’s Modest Proposal, one she suggested over A YEAR AGO, that clearly nobody listened to and so utterly wasted a whole year and did real damage to real people, all of it pointless, none of it having even the slightest effect on the one thing the RWQCB is supposed to be interested in protecting: Water.
Tim Cleath of Cleath & Associates has already testified that pumping and inspecting and repairing will have a negligible effect on the groundwater. So, please, everyone, let’s not pretend that the requirements of the CAO are scientifically justified or can even be supported by a cost/benefit analysis for the short time needed until a wastewater system is built.
But, I think that the majority of ordinary folks can all agree that a community-wide PIR request will catch a few failing systems, might help improve the functioning of some, might have a modest effect on perched water, certainly shouldn’t actually hurt anything, is a plan that should have been put into place years ago under the provisions of having a Septic Management District authorized by the RWQCB’s own Resolution 83-12, (which they never enforced), and in general can be viewed as a Feel Good & Save Face Plan. The community can pretend that they’re helping “clean up water,” and the RWQCB can pretend that, “Hey, we’re working hard over here enforcing clean water!”
If that’s a reasonable compromise that will put the community and the RWQCB on the same path, facing the same direction, then all the RWQCB has to do is rewrite their misleading “Settlement Agreement” as a simple, voluntary, signed “Request to Pump, Inspect and Repair and Hook Up When Sewer Comes On Line” document, tighten up the specific requirements and glossary of terms as to what constitutes field failure or what would require fixing & etc, keep the same dates and time schedules so compliance can be done in a reasonable way (avoid thousands of pumper trucks all jammed up and causing the Air Quality Control People to show up again), dump all the “most favored nation” crap with its coercive different fines and penalties for post 2011 action, note in clear, bold letters that failure to comply with this voluntary RPI program will result in an official CAO being sent out. Then track the paperwork as it comes in, (exactly as planned with this proposed scheme) and on a certain date, send those who have refused to comply with the voluntary Request a “real” CAO. (Only one, the official one, with the same PIR requirements, so you don’t set up two classes of folks with different PRI requirements, etc, and nothing tricked out to look like something else.)
Since the 218 vote has NOT taken place, since the “somewhat arbitrary” 2011 cease-discharging-entirely-by date has NOT arrived, since the RWQCB has already sent out their non-official “Notice of Violation,” since the RWQCB’s OWN July 9, 2004 report, titled, “Considerations of Enforcement alternatives for Baywood park/Los Osos, San Luis Obispo County” repeatedly noted, “(residents, property owners, business, etc). . . have very few options for complying with the discharge prohibition . . .” and “ . . . property owners have been powerless to prevent the delays in the project . . .” and “ . . . individuals have very limited means of effectively ceasing discharges until a community sewer system is available . . .” it’s clear to me that CAO’s at this point are premature and counterproductive. There is plenty of time after the 218 vote to issue official CAOs, if necessary. Plenty of time. Right now, they are just going to set off more pointless brushfires and threaten the one thing everyone is working towards.
So, what the RWQCB needs to do now is to stand down and hush up between now and the 218 election date. I don’t want to see any of the usual threats trumpeted via the Tribune (“FINES!FINES!FINES!YER ALL GONNA DIE INNA STREETS If You Don’t Vote The Way We Want You To”) either.
Instead, I want to see press releases coming from Matt or Harvey, extolling how Wonderful the voluntary PIR program is going, how Wonderful the citizens of Los Osos are, how much they care about their groundwater, how hard the County and the TAC are working on the new project, how closely the RWQCB staff are monitoring the progress and how pleased they are that the projects being screened all comply with the new State Water Guidelines, and how staff looks forward to the 218 vote since they know that the vast majority of Wonderful people in the PZ want a Wonderful viable project to go through in order to protect their groundwater.
In short, the RWQCB can stop doing everything in their power to bring about a further divided community and a failed 218 vote and start doing everything in their power to ensure a successful project.
Matt, Harvey, Roger, and the Regional Board Members: The sewer wagon has already left the station. For God’s sake, STOP TRYING TO KNEE-CAP THE HORSES!