Calhouns Can(n)ons

No, thank you, I don’t need to stab myself in the eyeballs with an ice pick for eight hours. I’m spending that time sitting here at the RWQCB “trial” of The Los Osos 45 instead.

DAY ONE

It’s getting truly difficult to find the right words to describe what the Regional Water Quality Control Board and Staff are doing nowadays. Stupid? Incompetent? Indifferent? Pointless? Counterproductive? Appalling? Ridiculous? Sadistic?

Take the December 14 & 15, 2006 hearings where the first item on the agenda was to consider the PROPOSED “settlement” agreement crafted by The New Grand Inquisitor, Reed Sato, and about half of the Los Osos 45 who, at that point, had agreed to sign on. It was item #3 and I filled out a speaker card to comment on the PROPOSED settlement, you know, like Mr. Sato presents the agreement, the Board takes comments, then discusses and votes on whether or not to accept it as written or add critically missing stuff and send it back for re-negotiation, you know, like things that people might bring up during the comment period that need to be addresses so the agreement can be even better, or seriously look at items in the agreement that will cause real problems to the Board or staff or citizens down the road, you know, things that might have been overlooked since the negotiations were cut short by the Board so they could go ahead with this Public Beheading of The Los Osos 45 even though they and Mr. Sato were sooooooo close to a total win-win with a more considered settlement that could have avoided these ridiculous, wasteful hearings altogether?

So, the Board listens to Mr. Sato, brings up some concerns of their own, then votes. No public comment. Thanks for coming, shut up and go away, our minds are made up. Yes, we can see that there’s some real problems with this agreement, but we don’t care, let’s sign on rather than clean things up now, and if there’s problems down the pike, Oh, well, we’ll think about that tomorrow, and, Aw, gee, maybe we can improve things in the next round of agreements, Now, get the tumbrels here, let the public beheadings commence!

Would you call that kind of approach to a huge issue Stupid? Maybe that it showed a clear lack of foresight? Indifference? I think the word “amazing,” should get in the mix. Amazing that you had a Board and Staff that created and allowed to continue an appalling set of very poor decisions, [issuing CDOs to a whole community, clearly the wrong blunt instrument to use], let this original bad decision made by [CEO Roger]Briggs compound and grow, thereby wasting time and resources. Oh, and don’t forget we had the appalling observation that, while they’ve wasted gazillions on these “trials,” the first of which crashed and burned, they were “too poor” to afford a mediator. And now, they “run out of time” to really negotiate a great settlement, one that would save them even more time and money, so they can move to a totally unnecessary “show trial,” which, of course wastes more money?

What words can you possibly use to describe such behavior. I’m at a loss.

Certainly “embarrassment,” came to mind as the Show Trial & Public Beheading Portion of this Gong Show continued. Acute embarrassment for the staff, who once again had to sit there and get grilled and keep answering, “I don’t know, Uh, no, don’t know, Uh, no we have no evidence of nitrate discharges under Mrs. X’s property, no we don’t have any soil readings, no, no studies showing the nitrate ratio benefits to our Mad Pumping Scheme, no, there are no isotope studies linking septic tank X with groundwater pollution Y, No, no studies liking Property X with groundwater pollution, No, don’t know, uh, no never heard of that, uh, . . . . .”

Or changing their answers. For example, when Several Accused asked staff what evidence they had that property X was polluting the groundwaters of the state of California, the Chair and/or staff huffily replied that that’s NOT what was being charged, only to have the front page of their own CDO document read back to them and there it was, that pesky phrase. It wasn’t only, Are you guilty of “discharging?” but polluting the groundwaters & etc. Did pointing that out change anything? Not a bit of it. That would be a material fact and material facts in this public beheading had no place.

Even scarier, the Board apparently was unaware that these CDOs that they were issuing carried with them the clearly stated possibility (clearly stated in the RWQCB’s own documents) of criminal penalties, not just civil liabilities. When that was pointed out, the subject was changed or that clearly stated possibility was airily dismissed as speculation or some totally inconceivable far flung future possibility that certainly need not concern the Board now, so Move Along! Move Along! PAY NO ATTENTION TO THOSE PESKY BUNCH OF WORDS BEHIND THE CURTAIN!

[On day two, you had the utterly wonderful spectacle of people tried and beheaded in absentia, people who never bothered to return all the reams of paperwork sent to them at all, people for whom the Prosecution Staff had NO information, no statements, no response, no material facts, nothing, yet they were found guilty of polluting the waters of the State of California and beheaded. Case closed!]

Countering some of this weirdness was Mr. Murphy, the CSD’s attorney, who pointed out that using general, overall groundwater contamination studies collectively to require governmental clean up, collectively, is a legally valid tool. BUT, for individuals, using the collective model violates all their due process rights and presumption of innocence. He likened what the Board is trying to do with the individual CDOs on citizens living within the Prohibition Zone like the Highway Patrol issuing speeding tickets to a random number of people who just happened to be driving by a portion of the freeway where they had collective evidence of speeding. So, drive past that point on a given day and, ka-boom, you get a ticket, even though there is no evidence you were speeding, you just happened to be driving by that particular stretch of road. What are the chances that such a ticketing scheme would hold up in a “real” court? So, why is this “kangaroo court” forcing citizens to go through this song-and-dance when the whole sham may well be tossed out, but only, of course, after everyone – including the RWQCB—has spent and wasted big bucks?

Is “pointless” the word I’m looking for here?

But there the Board sat. Nobody said, “You know, ol Roger Briggs, who’s now out sailing somewhere far out of reach of any subpoenas, dropped us in this mess when he lost it and started up with this truly ill-considered Mad Pumping CDO Scheme even before the recall had been certified, even before the CSD and the State Water Board stopped the project, and so we didn’t want to lose face and look like idiots, so we didn’t know what else to do but just kept plodding down this wrong road because we couldn’t think of anything else to do. But now, we got our new Grand Inquisitor here and he’s one smart cookie who believes, as all really smart litigators do, in Settlements! Settlements! Settlements!, so instead of continuing down this wasteful path – remember, we’re POOR! We can’t even hire a mediator – let’s stop right here, put these Public Beheadings on hold, send Sato back to the community to work on this settlement agreement so they’ll answer some real concerns we all have, then come back for another look-see. We could avoid this whole awful, wasteful, stupid process altogether and let the community and our staff concentrate on making sure the County can deliver a great project that the community will support.”

Did that happen? Nope. Now, what’s a good word to describe that sort of obtuse behavior? Stubborn? Stupid? So many choices available, smart choices, yet the Board kept plodding down the same swampy road to nowhere complaining that their feet are wet.

Pleeeeze, pleeeeze, gimme a word here to describe that.

And while you’re at it, maybe you want to run some numbers? By the end of day two, about 27 people signed settlement agreements, an unknown number of the remaining 45 were tried and beheaded in absentia and the rest had their hearings postponed until possibly next month. It took most of the day to “try” and convict about 6-7 people. That leaves about 4,500 ++ left. Let’s presume half of those settle, now we’re down to about 2,300. If each “trial” takes about 15 minutes each, and the Board spends 1-2 days a month just on this issue alone, how many years will it take to process those 2,300?

DAY TWO

Unnnhhh, mmmmm, ooooOOOOO, OH, UH, Arrrggguuugg, Urrrnnn, Oh Plueeeeeeze Mummy, Make The Pain & Nausea Stop, Make Those Awful Men Go Away, Uhnnn, ohhhhh ….

Several interesting lines of inquiry and/or testimony on Day Two and another of those jaw-dropping, gape-mouth moments:

First, testimony by Tim Cleath of Cleath & Associates (The Main Water Guys). Will the requirements of the settlement and/or CDOs that every resident pump, inspect and repair their septic systems as a short-term interim, reasonable mitigation (as stated in the RWQCB’s CDO documents as justification for the CDO) have any effect on the groundwater in Los Osos?

NO. No benefit to the water quality for this sort term. Installing a community-wide wastewater system will have a benefit to the upper aquifer, but it will take possibly 40 years to be realized.

Next interesting question of Mr. Cleath involved connecting well testing numbers to specific properties. Per Mr. Cleath, well tests were NOT designed to indicate what groundwater conditions were like a block away, that there had to be strong caveats in making claims that well data is linked to specific septic systems. (Exactly the assertions made by the RWQCB’s case: If you live within the prohibition zone, you are polluting the groundwaters of the state of California, period, end of sentence, exactly what Mr. Cleath, The Water Guy, warns against doing.)

And here’s the jaw dropping moment:

At several points in the proceeding, while the staff took time to clean the guillotine between each public beheading, it became clear that the Board was UNAWARE that The County HAD NOT officially taken on the wastewater project, they were UNAWARE that the target dates they were planning on putting in their foregone conclusion-CDOs were not yet “real,” that the dates they were using as triggers for further enforcement, dates that put real people in real peril of fines and possibly losing their homes, were also NOT real.

It was suggested that a prudent course of action was to continue with issuing these CDOs [legal and binding documents by any definition],but hold formally turn-keying them in final form until the County could actually give the Board REAL dates and numbers.

DENIED!. Instead, they guestimated at what they thought might be real dates and just plugged those in instead. Why ruin a great bloody show with, uh, actual “real” facts?

Verdict first! Evidence later! More tea! More tea! Move down! Move down!

And then there was this very interesting line of questioning by CDO recipient # 1034 of the Staff:

What proof do you have that less harsh methods (than a CDO) wouldn’t have worked?

None.

What proof do you have you couldn’t achieve interim compliance with just a letter to the residents?

None.

What proof do you have that I [#1034] won’t cease discharge or hook up to a wastewater system when one comes on line?

No proof.

And so forth. Clearly, the staff and the Board had a variety of methods to get the residents to “pump, inspect, repair,” including their own Resolution 32-12, passed years ago. They could have done something I suggested last year: Send notification letters to residents to comply and offer proof of interim compliance (pump, inspect, repair) and if you don’t, then we’ll issue CDOs on those who don’t comply. Very simple.

They could have invited Mr. Sato to craft an interim Clean Up & Abatement “settlement agreement,” send it out to all the residents and those who signed on wouldn’t get CDOs, those who didn’t, well, that was their choice.

They could have, as requested a year ago by the CSD, worked to turnkey a Septic Management District, as outlined in their own Resolution.

In short, they had many tools in their box. They had ample opportunity to re-think what they were doing, change direction, and yet they alone CHOSE to use the CDOs. Which prompted my constant question, Why? What words could you use to describe such action, such choices?

Finally, by Day Two I had my answer. The word I was looking for was this: Claimed Victimhood Via Faux Disingenuous Mendacity.

Of all the creeping horrors of watching the incompetent bumbling and unnecessary cruelty and waste that has gone on for a whole year, yesterday was the apex of it all, an apex that clearly illuminated the problem and the game here.

Quote of the day: [Since 1988, . . . “the [RWQCB]Board has patiently waited for something to happen. . .” said Board member Mr. Press, utterly ignoring the fact that the Board was the ONLY player in the room that had all the power to MAKE “something happen,” yet for years did nothing.

This neurasthenically weak and weepy observation of faux victimhood by the only people in that room WITH real power was followed throughout the day-long beheadings by blandly disingenuous statements from other Board members as to how helpless they were, how they hated issuing CDOs to poor old sick people, residents they knew full well were powerless to build a sewer plant on their own, how unfortunate it all was, how terrible it made them feel, but they had no choice, they could do nothing else, they were helpless.

It was a true Uriah Heep moment, utterly nauseating in its self-blinded mendacity.

Worse to come was when a CDO recipient, after presenting his case but before the GUILTY verdict could fall, after pleadings from his wife, decided to sign the “settlement agreement,” but stated he was doing so “under duress.”

This patently obvious, blatantly, blindingly clear and truthful observation caused the Board members to recoil in faux horror – Duress? DURESS? Why, we’re shocked – SHOCKED – that you could possibly think we’re coercing you into signing anything. No, no, we’re horrified that you would think that. True, you’ve just watched as one after another our verdicts have been raining down like a metronome’s beat – GUILTY GUILTY GUILTY GUILTY GUILTY GUILTY GUILTY –but we’re genuinely hurt and shocked that you would think that in your case, --which, by the way, you have a minute or two to agree to sign before we withdraw the offer and render our verdict –that our verdict won’t be the same as all the others. How could you possibly think this? No, no, we can’t let you sign that agreement if you feel you’re under duress. No, we must make sure that you’re signing that agreement of your own free will, that you WANT to sign that agreement, that you confess to us that it isn’t “duress” you’re feeling. So, may we suggest that, perhaps, if you used the word “disgust” or maybe say you’re signing while holding your nose, or say you think the agreement ”stinks” but you’re signing it anyway, but duress? Never, never, perish the thought.

AH, the Grand Inquisitor Moment, the auto-de-fe, the ritual kissing of the sacred relics, the confession tearfully but “freely” made, before being consigned to the flames.

All presided over by the saddened Bishops who were helpless to do other than they were doing, but who took comfort in the knowledge that although their victim’s body was claimed by the fire, his soul had been saved.

And as to the question of Why? To me, there are two clear answers: First, as Mr. Cleath made clear, the interim mitigation required of the CDOs will do nothing, but it does have the beneficial effect of making it appear that “something is being done,” thereby allowing the RWQCB to claim that, after years of doing nothing, see? We’re doing something over here. Never mind that it’s not effective on the waters of the State of California. That’s not the point; Appearance is the point.

But finally, at their heart, the CDO’s are the heavy hammer that is being used to force the residents of Los Osos to vote in the way that the RWQCB wants them to vote. Is that illegal electioneering? Voter coercion? Misuse and abuse of power? Duress?

Why, we’re shocked – SHOCKED – that you would even think such a thing.