Is That A Lawsuit In Your Pocket Or Are You Just Glad To See Me, Part Duh, Cont.
Ah, what better way to end the old year and start a new one but with continued discussion about lawsuits. As previously posted (12/18 & 19/07), AES CEO Tom Murphy had filed a grievance claim with the state as a first step in suing the state for defamation, and etc. Now the New Times (Dec 20) reports an even more interesting proposed lawsuit: “Soon, Murphy said, he will start gathering signatures from people who are connected to either of the CSD’s group septic systems – the ones who’ve been ordered by the state to cease and desist discharging waste into the ground. There are 224 such houses. The petition will demand that the CSD do business with Murphy. If the CSD rejects it, Murphy said the same residents who elect and fund the CSD would file a class-action suit in the amount of $200 million. . . . “’This is the situation that the LOCSD will be in,’ Murphy said, ‘if they do not finally bit the bullet and do business with us.’” . . . “Members of the CSD were unavailable for comment as of press time, but Deputy County Counsel Warren Jensen said Murphy ‘could certainly file a lawsuit, but whether or not it would be dismissed is another thing.’”
Hmmm, interesting. Now there’s a new wrinkle: Citizens hooked up to a central septic tank suing their government for delaying or refusing to install “proven” systems that would (perhaps) stop or at least reduce “discharging” whatever the RWQCB says they’re “discharging,” and hence reduce their financial liability for fines since fines are supposed to be based on the amount of environmental damage done and amount of “discharge,”and type of “discharge” (“organic” nitrates slightly over the state standard versus high amounts of cancer-causing benzene, for example) and whether or not the discharge is “willful” or “reluctant,” thereby putting citizens in worse financial harm’s way for the full blast of CDOs and fines and loss of their homes and, even jail time, and so forth.
What makes this so déjà vu-ish, is after the new CSD was installed and settled into the office to review papers & etc, they uncovered an old letter from Roger Briggs to then General Manager Bruce Buel giving a tentative o.k. to install certain systems in the firehouse, for example, on a testing basis, onsite systems that were presumed to be able to reduce “discharge” of “pollutants,” and hence could have likely reduced the HUMONGOUS fine the RWQCB later stuck the CSD with for their properties. Ditto, the water office and the Bayridge Estates & Vista del Oro collective system & etc.
According to some of the newly installed CSD Board members (and two of the old, un-recalled members) they had never seen that letter before.
So, why is that letter important? Well, the RWQCB has strung up The Los Osos 45 and has fined the CSD millions of dollars, declaring them to be illegal, evil, law-breaking “dischargers” who are willfully polluting the groundwater, destroying Morro Bay, damaging the environment with millions of gallons a day of sewage, Gaaaaahh, we’re all gonna die in the streets like dawgs, emergency! emergency! and all the while, they knew the previous General Manager had a letter in hand for several years now giving permission to install a system that would likely immediately reduce said pollution, (thereby reducing any fines since the fines are supposed to be based on the amount of pollution discharged that actually was polluting the waters of the state of California) a system that had the o.k. of Roger Briggs to go ahead with this particular onsite system, yet two un-recalled members of the old CSD board stated that they were never shown that letter, and just as clearly the old CSD majority did nothing and the RWQCB did nothing, until it came time to levy fines on the new board after the recall, when the HUGE hammer hit, all based on “discharge” amount and number of days discharging and etc. and never once did the RWQCB give the CSD any opportunity to install anything before slamming them, or assist them with any pollution reduction efforts. Zip. (Which in the case of Bayridge & Vista del Oro, meant that the homeowners who were financially on the hook, had no way to getting themselves out of harm’s way.)
Clearly, Mr. Murphy sees that as a basis for a class-action lawsuit. The homeowners of Bayridge Estates and Vista del Oro, for example, who are facing huge pro-rata individual fines and loss of their homes and being sent to jail even if they don’t pay up, may want to think about those dollars per gallon fines and think about that letter from Briggs to Buel, and think about the year it sat in somebody’s file while nobody said anything and nothing was done except to keep those gallons of “discharge” flowing, all the while racking up huge potential “discharge” fines.
So, now, here comes Mr. Murphy claiming that his Reclamator will instantly stop “discharges,” (Yes, I know, nobody wants to define that term or certify anything at this point) thereby reducing (or eliminating) the daily “discharges” and hence the daily fines accruing for doing nothing while waiting for the county to build some kind of wastewater system, and the CSD and the RWQCB are still sitting on their hands.
Even weirder, a CDO recipient stated at a recent RWQCB hearing, that he had complied with everything the CDO required and asked Matt Thompson, the RWQCB staff go-to-guy, If I install an onsite system that eliminates all discharges, reuses water, etc, will you rescind my CDO,” and the answer from the RWQCB staff member was, “You don’t want to go that way . . ..”
You don’t want to install something that would eliminate “discharges” and thereby stop violating the law and come into compliance? You don’t want to go that way? This from the very outfit that declared this person a criminal and slapped a CDO on his home? Threatened him with jail time? Loss of his home? YOU DON’T WANT TO GO THAT WAY????
Which begs the question: If the RWQCB told this homeowner that he should NOT go the way of installing an onsite system that would stop pollution, what then was the emergency that required the RWQCB to spend two years and pots of money harassing him and the other 44 citizens with CDO’s and fining the CSD gazillions, all while totally ignoring their previously approved “test” system at least three years ago, and ignoring (near as I can see) Mr. Wickham’s in-tank Sludgehammer and/or Mr. Murphy’s “Reclamator,” and/or any other onsite system that reduces pollutants & etc, then telling a CDO holder he doesn’t want to go the way of installing any onsite system that would bring him into compliance and/or stop polluting the waters of the State of California?
If the pollution of the groundwater was so all fired important, wouldn’t you think that since the RWQCB laws require they HELP citizens come into compliance, that instead of spending gazillions “trying” and hanging those 45 people, they could have used that money to HELP them install whatever system could reduce their discharges and so lessen their potential fines (per gallon), until the county finished their project and everyone hooked up? (Not to mention that any system that actually reduced nitrates, even a little, would actually be helping clean water. So there was an interesting choice: use taxpayer money to help pay to clean water or just soak the taxpayer for the cost of the Mad Hatter’s Kangaroo Court while doing nothing to the water.)
It’s an interesting dilemma, that’s for sure. On the one hand you have the County and the RWQCB itself that issued permits for some 1,100 more homes AFTER the RWQCB had passed their 83-13 resolution that was supposed to STOP more homes (hence septic discharges) from happening, a RWQCB that did nothing for years except to publicly single out and hang 45 citizens and fine the CSD huge amounts, all the while knowing there sat in the files a letter from them that, had it been acted on earlier, could have reduced those fines (Indeed, if citizens had known about that letter, could they have installed different “reduction” systems, thereby lessening their fine liabilities based on the amount and type of pollution?)
(Since this is about nitrate loading, what impact would it have had on lessening the nitrate loading if the RWQCB had, long ago, implemented 83=12 and required the County, then the CSD, to form a septic management district, systematically pump, inspect, repair, replace, and/or install nitrate reduction systems in “hot areas,” HELPED fund nitrate reduction systems for the CSD and the citizens wishing to help actually clean up water and so forth. How much nitrate reduction to the upper aquifer could have been accomplished in all these years?)
(Even weirder, at the preliminary informational meeting prior to the start of the RWQCB Mad Hatter Tea Party & Auto de Fe Public Hanging, during the time they had proposed their Mad Pumping Scheme as some kind of “mitigation” effort, I spoke with one of the RWQCB staffers and asked him, Since this pumping scheme is an effort at mitigation, do you have a list of other Approved-by-you in-tank systems that could deliver the same guestimated mitigation numbers? He first looked at me with total incomprehension, then when he realized what I was asking, said, Oh, I see what you’re getting at. Yes, that would be a good idea, but no we don’t have any such list. That told me immediately that this Regional Board Staff HADN’T THOUGHT THIS WHOLE THING THROUGH. The rest, as they say, is history when the Air Quality folks walked in and started the crash & burn first Big Mess, followed by others.)
Clearly, the previous CSD board majority (if the three of them were shown that letter), and the previous General Manager, Briggs’ letter in hand, likely made a decision not to do anything since the wastewater project was chugging forward and would soon make “discharges” and 83-13 moot and the RWQCB agreed to “look the other way” at all the daily “discharging.”.
HOWEVER, that old “we’ll ignore our resolutions when convenient” attitude, takes on a far different cast when the same regulators later then decide to go hang 45 citizens. So the question comes back to “selective” punishments for “selective” reasons. And the question I asked above needs to be asked again: Did both the RWQCB and the County and the CSD have a responsibility to shield citizens from their (RWQCB, County, CSD) own selective failure to assist with compliance or assist with nitrate mitigations?
If the answer to that is Yes, then it’s possible Mr. Murphy has happened on an interesting problem. If Regulators and Governments know their failure to act and/or their present actions are putting individual citizens in harm’s way, what responsibility to they have to keep them OUT of harm’s way or reduce their exposure and risk?
Instead, what seems to have happened here is we have Regulators and Governments keeping quiet, burying inconvenient items, wink-nudge, then, when convenient to themselves, or because of a fit of pique and anger and a wish to “punish” citizens for daring to want to move a wastewater plant out of the center of their town, instituting a kangaroo court to convict and hang selected individual citizens to the nearest telephone pole as punishment so as to cover up the real problem: The years-long failure of both the County, the CSDs and the RWQCB to follow their own regulations.
Plus the bigger question: Is the RWQCB interested in water quality? Or just CYA political expediency?
Oh, Lucy, jooooo still gotta lotta ‘splainin’ to dooooo.
Apropos that, the following emails from Mr. Murphy:
As this was news today, I answered to Warren Jensen’s statement in regards to his suggestion that our lawsuit, provided there even is one, might be “dismissed”. I’m sending it to you to post on your blog if you wish. Yet another feeble attempt by the opposition to suggest impotency of AES, but just served as yet another opportunity to point out their weaknesses. The “truth” shall prevail!
I wish you and yours a very Merry Christmas and May God Bless,
To Mr. Low:
I would like to address the statement made by the Deputy County Counsel Warren Jensen. He said “Murphy could certainly file a lawsuit, but whether or not it would be dismissed is another thing”.
First off, it wouldn’t be “Murphy” who would file a lawsuit, but a select group of citizens of Los Osos who would as a “class action”.
Secondly, the lawsuit, if it were filed and I hope it doesn’t have to go this far, would be charging the LOCSD for “Intentionally violation of State issued Cease and Desist Orders by refusing to act in compliance with the requirements of such State Orders when presented an opportunity to “cease and desist all discharges of waste and comply with such State Orders”.
If such a lawsuit was dismissed, a precedent would then be set making all State Cease and Desist Orders meaningless.
What are the chances of this happening? What would this mean to the other CDO recipients? Why would the LOCSD refuse to comply to their CDOs in the first place? What would make them “above the law”?
A State can not selective use a CDO for a mechanism to force it’s own agenda, nor can a Judge selectively charge or not charge an entity who has been served a CDO and blatantly and knowingly refuses to comply with such order when given an opportunity.
D. Thomas Murphy
RECLAMATOR, “The Future of Water”
AES Central Coast Discharge Elimination Company, LLC.
Advanced Environmental Systems, Inc.