Dear Mr. Packard

Below is a letter by CDO Recipient R3-200601041, Bev Moylan, to Harvey Packard and the Regional Water Quality Control Board.  Harvey, one of the staff architects who helped create the cruel and ridiculous disaster that was the RWQCB's  "Mad Hattter Tea Party and Torquemada's CDO Auto de Fe Show Trial" that prosecuted The Los Osos 45. There are new members on the Board now, including a new Chairman, and I can only hope that some of  the more absurd aspects of this appalling regulatory abuse and comic-opera farce so clearly outlined here will prove to be a revelation to them.  A revelation and a unique opportunity to finally do the right thing here and, by removing these CDO's, help in some small measure to repair the damage done by the Board to itself, to this community and to these 45. 

There is never a wrong time to do the right thing.  And now is that time.

    

Dear Mr. Packard,

     Attached is my response to the invitation you extended seeking contributions from the community for your consideration in making your May Water Board presentation concerning the status of the Los Osos CDO’s.

     Please note that I have Cc:'d members of the Water Board in my correspondence and must rely on the good graces of Mr. Michael Thomas to forward it to them, as email contact information for the Water Board is unavailable. I have copied this email to the SLO County Board of Supervisors and the LOCSD, who may have an interest in the discussion. The CDO recipients, interested party, and community members listed at the end of my letter to you have been Bcc:’d in the email in the event that some of them may not appreciate having their personal contact information displayed in the public record.

     Thank you for this opportunity to contribute to the discussion of how to approach the "Los Osos 45” CDO’s, given the events of the past eight years.

     I urge you to reach out to the community as soon as possible, considering your March 31 deadline, using the considerable means at the water Board’s disposal to encourage participation from a broad spectrum of respondents. To rely on our contacts is to have extremely limited community outreach as you will see from the Cc: list at the end of my attachment.

     For your convenience a hard copy will follow this email.

Sincerely,

Beverley De Witt-Moylan,  CDO#R3-2006-1041

Bev's Letter to Harvey:

CDO #R3-2006-1041

1516 17th Street

Los Osos, CA 93402

March 13, 2014

Mr. Harvey Packard, Enforcement Coordinator

Central Coast Regional Water Quality Control Board
895 Aerovista Place, Suite 101
San Luis Obispo, CA. 93401-7906

Dear Mr. Packard,   

     Recently you wrote my husband, William Moylan, about your plan to approach the CCRWQCB at their May 2014 meeting to make a recommendation on the 2006/2007 “Los Osos 45” CDO’s. Your message invited participation from him and from the community. (“If you or anyone else interested in the situation would like to provide input toward my recommendation, please provide that information to me by March 31.”) My husband told you in a recent email that our contacts in the community are limited, making it impossible for him to communicate your intentions community-wide or even CDO-wide. Given your deadline, I hope that you will contact the community without further delay, especially CDO recipients, to solicit their ideas.

      As a CDO recipient I appreciate this opportunity to contribute my thoughts to your Board presentation. I heartily support a proposal that the Water Board consider removing the punitive and costly “Los Osos 45” CDO’s. Thank you in advance for acknowledging receipt of this message and for your prompt response to my comments.

     Below are points for the Board’s consideration to support removal of the 2006/2007 Los Osos Cease and Desist Orders. 

 1) Limiting Los Osos CDO prosecutions to 45 out of approximately 4500 Prohibition Zone families:

     As you are aware, Mr. Packard, Water Board records demonstrate that my husband and I have consistently complied with the terms of our CDO. Since 2006 we have paid for three pumping cycles. Before the Los Osos sewer is scheduled to go on line, another cycle will be due. Newer Water Board members should understand that the thousands of dollars spent to comply with CDO requirements since 2006 represent an expense exclusive to the 45 targeted CDO families.

     Newer Water Board members may have the same difficulty we did comprehending the clean-water rationale behind choosing just 45 families out of approximately 4500 to clean the waters of Los Osos. Newer Board members may be aware that the Water Board began those 45 CDO prosecutions in January 2006 and imposed no further CDO’s in Los Osos after the successful sewer assessment vote in 2007. They may appreciate why some believe that the aim of the CDO prosecutions in Los Osos was, in fact, a YES vote on that 218 sewer assessment. Whatever the original intent, the small number of CDO enforcement orders has been as effective as no enforcement orders at all in cleaning the groundwater basin in Los Osos.

2) Random enforcement:

     Newer Board members need to know that the term, “random enforcement” was only loosely applied to the 2006/2007 Los Osos CDO prosecution. Some commercial properties use significantly more water than any single family home and are more likely to degrade groundwater quality. Yet no commercial property in Los Osos became a target for a proposed CDO in that enforcement action. At the same time, home businesses were not exempted.

     The proposed CDO required all defendants to disclose to the Water Board in early 2006 the names of all residents on their property or face heavy daily fines. Because of that requirement, the Prosecution Team and the Board knew that some households, like ours, were comprised of just one or two people, many of us not at home during the day. While some small households were being prosecuted at random for polluting the groundwater, other homes housing large groups and families escaped enforcement. One neighbor on our block operated a daycare. A house across the street from us had four adults in residence, two of them stay-at-home, along with four young children. A college rental on our block housed up to ten people per night. At their frequent parties many more used that septic system. Another neighboring home was the off-and-on residence of up to six adults. Except for a now long-vacant house across the street from ours, no other property on our block but our two-person household has a CDO with its frequent pumping requirement.

    Newer Water Board members surely understand that distance to groundwater can play a role in water quality. In the random CDO prosecutions, however, distance to groundwater was not considered, because site-specific evidence was irrelevant in choosing CDO targets. Homes sited much too far above groundwater for seepage to occur received the same CDO enforcement with the same pumping schedule as those much closer to groundwater.

     The unscientific selection of random targets for individual CDO enforcement provides only accidental opportunities for water quality improvement. Random CDO prosecution to address basin-wide water quality makes no environmental sense.

3) The conduct of the prosecution:

     Instead of utilizing a more moderate community-wide mechanism to achieve a potentially reasonable clean-water outcome, the Prosecution Team went directly for extremely limited random application of the high-impact Cease and Desist Order with its inherent threats of up to $5000/day fines and the possibility of referral to the California Attorney General for criminal prosecution should the sewer project stall. This tactic was the clean water solution the 2006/2007 Water Board visited on 45 law-abiding, taxpaying families to address water quality in Los Osos in 2006/2007. Those orders and those conditions persist to this day. As newer Water Board members may imagine, daily exposure to this toxic influence for more than eight years has resulted in personal consequences to health, relationships, family life, work, and school. Any hint of a potential sewer project delay affects us, but our CDO has no measurable effect on water quality in Los Osos.

     The Prosecution Team’s approach to evidence was to introduce no site-specific data beyond a Prohibition Zone address. The 2006/2007 Water Board did not require nor consider site-specific evidence in rendering its CDO judgments. Whether a household was two feet or a hundred feet above groundwater, whether a single person working outside the home or a large group used a septic system, whether a septic system was malfunctioning and seeping into groundwater or was functioning perfectly, all were irrelevant to the 2006/2007 charges of groundwater pollution.

     To make an informed decision in response to your proposal, Mr. Packard, newer Water Board members need to grasp that the 2006/2007 Water Board and staff made no attempt to find pollution and fix it. Imposition of CDO’s was the sole goal, and the record demonstrates that a Prohibition Zone address was the sole requirement for successful prosecution of the proposed CDO’s. In considering the CDO’s today, newer Water Board members will note that without site-specific pollution evidence and site-specific remediation plans the Los Osos CDO’s do not serve the purpose for which CDO’s were intended.

     Newer Board members are likely unaware that after issuing proposed CDO’s in January 2006 the Water Board encouraged defendants to work together to prepare their defenses from stacks of disorganized documents located in a back room on site and sometimes on the CCRWQCB web site. You no doubt remember, Mr. Packard, and can apprise the newer Board members of how, with the careful appearance of proper procedure, the 2006/2007 Water Board led defendants to believe that they had a fair chance to avoid a CDO judgment with a well-researched defense.

     As Mr. Jeffries, Mr. Young, and you are well aware, Mr. Packard, but newer Board members may not be, defendants discovered that whether they appeared at their hearings with a solid defense supported by expert testimony, whether they failed to appear and took a judgment by default, or whether they simply did not respond in any way to the proposed CDO notice, all defendants received the same judgment. It became clear when the individual hearings began, and the Water Board issued blanket CDO’s, that no defense could trump a Prohibition Zone address. With no evidence beyond a map of defendants’ homes the prosecution team prevailed with 100% success. To meet a Water Board enforcement objective in Los Osos, 45 families were found guilty of living in the Prohibition Zone.

4) Frequent pumping requirement of the “Los Osos 45” CDO’s despite expert testimony to the contrary:

     Frequent septic tank pumping has not only an ongoing financial impact, but also a negative effect on proper functioning of the septic system. Newer Board members may not know that in 2006 septic experts testified at the CDO hearings that frequent pumping impairs proper operation of septic systems. Newer Board members should be advised that at the time the CDO’s were imposed, Water Board staff member, Matt Thompson, testified that no Water Board member, nor Water Board staff, had any formal training in the structure and function of septic systems. Faced with expert testimony, credentials, references, and recommendations from septic systems experts on the hazards of frequent septic tank pumping, staff nonetheless recommended and the Water Board imposed CDO’s with an every-three-year pumping requirement.

     Each time we have had our tank pumped as required, Al from Al’s Septic has told us that our tank did not need pumping, adding that some tanks work well for 30 years without pumping. Nonetheless, we have to follow the CDO requirement to show evidence of compliance by having our tank pumped and submitting receipts every three years.

     Dr. Daniel Wickham, who gave expert testimony at the CDO hearings said that it can take up to two years for a tank to recover its bacteria levels and begin to work efficiently again after being pumped. An every-three-year pumping schedule seems to be the wrong way to approach septic tank efficiency. Removing the CDO with its frequent pumping requirement would return our septic system to a healthy balance and more efficient functioning until we hook up to the sewer when the project is complete.

5) No apparent compliance oversight:

     In considering removal of the “Los Osos 45” CDO’s the current Water Board should also note that CDO compliance has been inconsistent, with effectively no oversight to address non-compliance with the required pumping schedule. Indeed, I have no knowledge of any penalties incurred by, or any Water Board interest expressed in, CDO recipients who have allowed their pumping requirement to lapse.

     Given the apparent lack of attention to CDO oversight, my husband and I became curious about non-compliance as a way to avoid an unnecessary financial drain with the added benefit to our septic tank of not pumping. We wrote the Water Board to find out its position on non-compliance with the CDO pumping requirement. Instead of simply answering our question, however, Water Board attorney, Ms. Helen Arens, construed our letter as an attempt to negotiate our CDO. She failed to address the Water Board’s policy or position on Los Osos CDO compliance oversight. In the absence of information on the oversight policy for the “Los Osos 45” CDO’s we came to believe that none exists.  With no apparent mechanism being utilized to oversee compliance it might be difficult for newer Water Board members to appreciate the relevance of our individual CDO’s to the quality of groundwater in Los Osos today. Having cost California taxpayers hundreds of thousands of dollars to prosecute, the 2006/2007 CDO’s now appear to be all but obsolete.

6) The process currently in place for CDO removal in Los Osos:

     Newer Board members may find it intriguing that the Water Board already has a procedure in place for removing the CDO’s in Los Osos. They might be surprised to learn that upon sale of a targeted property the new homeowner starts fresh with nothing more than the pro forma NOV sent to all other non-CDO properties in town. In addition, the former homeowner walks away from the property completely free of any enforcement encumbrance. In short, when CDO-targeted property sells, the CDO vanishes.

     When targeted families sell their homes, buyers move in CDO-free. This system demonstrates clearly how little the Water Board values our CDO’s as effective mechanisms for establishing and maintaining clean groundwater in Los Osos. You and I, Mr. Packard, both know of targeted families, some of them quite elderly in their late 80’s and early 90’s, who felt forced to sell their Los Osos homes to escape the stress of living with a CDO. Newer Board members may be motivated to consider ways to remove our CDO’s that do not force families out of their homes.

7) Present impact of CDO’s in Los Osos:

     Los Osos residents I have talked to in recent years are shocked to discover that the CDO’s remain in place and that we are still paying regularly to pump our tanks. Most believed that the CDO’s were removed long ago following the 2007 passage of the 218 sewer assessment. They had their suspicions about the reason for the CDO’s in 2006 and thought their YES vote gave the Water Board what it wanted (see comments by Mr. Young as Board Chair in 2005 and 2006 regarding voting in Los Osos and the enforcement actions there). In addition, many of those not targeted for CDO’s have been completely unaware of them with no idea what a CDO is. Many who moved here in subsequent years have had no exposure to that tragic chapter in Los Osos history, especially since the popular press has not covered the “Los Osos 45” in recent memory. The only impact of CDO’s in Los Osos today is the longterm financial burden on and the implicit threats to the targeted families. The Los Osos CDO’s long ago outlived their true purpose by many years and many thousands of dollars.

     Mr. Young, Mr. Jeffries, and you, Mr. Packard, were parties to, and can likely find justification in your own minds for all the aforementioned. My hope, however, is that based on the fresh perspective you intend to provide, the 2014 Water Board will agree that it is time to remove the 2006/2007 Los Osos CDO’s.

     In addition to asking the Water Board to remove the Los Osos CDO’s, I request that you make two more proposals on behalf of the Los Osos 45.

1) Apology:

     Many in the community believe that the Water Board owes the “Los Osos 45” an apology. Newer Water Board members may be able to appreciate the pointless harm caused to 45 Los Osos families through the random CDO prosecutions of 2006/2007, and more than eight years of enforcement. Video and written records serve as stark reminders of what ordinary Los Osos families faced for months as CDO defendants, and for years thereafter, in a prosecution that ultimately produced no discernible benefit to the waters of the state of California.

      Uncomfortable as it may be for some to hear, the CDO prosecutions in 2006/2007 and their aftermath have caused irretrievable losses of life, health, peace of mind, family bonds, homes, income, and time. A written apology is the least the Water Board can offer each family targeted for a year of prosecution and for over seven years of enforcement with persistent threats of daily fines, referral to the California Attorney General for criminal prosecution, and loss of property should the sewer project encounter any unexpected delay.

2) Reparations:

     My second request is that those of us who have submitted receipts in compliance with the terms of our CDO’s shall receive compensation for all money spent on what amounts to unjust fines for the pumping requirement that none but the “Los Osos 45” have had to fulfill. Newer members of the Board will no doubt comprehend the unfairness of this onerous, unscientifically applied obligation placed on randomly selected families, a number known to be much too small to be of any statistical significance in addressing the condition of the groundwater in Los Osos. Yet, as a member of the Prosecution Team at the time, Mr. Packard, you are aware that addressing impaired groundwater quality was the pretext for the CDO prosecutions, which stopped after successful passage in 2007 of the 218 sewer assessment in Los Osos. No matter what newer Board members may believe to have been the true purpose of our CDO’s, they cannot fail to see the obvious. Imposing CDO’s on a random selection of 45 families in Los Osos, and enforcing those 45 orders for over eight years could never accomplish a basin-wide clean water objective.

      It is my hope that your presentation, Mr. Packard, will allow newer Board members to see the logic of removing the CDO’s and the appropriateness of redress. Reparations are a way to address in Los Osos what is ultimately irreparable. By offering an apology and compensation, the Board has an opportunity to reverse a questionable strategy used eight years ago with consequences that reverberate to this day. The actions of the 2006/2007 Water Board forever changed the lives of 45 Los Osos families. The 2014 Water Board has an opportunity finally to compensate them by removing their CDO’s, along with refunding their pumping costs, and extending an apology, allowing a long-overdue healing process to begin at last.

     For further background on the prosecution of the “Los Osos 45”newer Water Board members could search the archives and links at www.calhounscannon.blogspot.com and  www.sewerwatch.blogspot.com.

     Thank you, Mr. Packard, for this opportunity to contribute to your May 2014 Water Board presentation. For your convenience I will send you a hard copy of this message with copies to members of the Water Board, the San Luis Obispo County Board of Supervisors, the Los Osos CSD, and other community members with an interest in this process and for whom I have contact information. I hope you will use the abundant resources at the CCRWQCB to advise the Los Osos community of your intentions so that “anyone else interested in the situation” might have an opportunity to contribute their thoughts.

Sincerely,

Beverley De Witt-Moylan,

CDO#R3-2006-1041

Cc:

Dr. Jean-Pierre Wolff, Chair CCRWQCB; Dr. Monica Hunter, Vice Chair; Bruce Delgado, Board Member; Russell Jeffries, Board Member; Michael Johnston, Board Member

Michael Jordan, Board Member; Jeffrey Young, Board Member; Michael Thomas, Assistant Executive Officer; Bruce Gibson, Chair, SLOBOS; Debbie Arnold, Board Member; Adam Hill, Board Member; Frank Mecham, Board Member; Caren Ray, Board Member; Los Osos CSD