Calhouns Can(n)ons

Regional Water Quality Control Board to The Los Osos 45 – No Christmas Candy For You! You Get Lumps of Coal In Your Shoes.

Yes, while the rest of the community slumber all safe in their beds this Christmas season, at their Dec 7 meeting, the RWQCB decided that The Los Osos 45, those hapless folks who have been singled out for two years worth of continued jerk-around punishment (and despite of the overwhelming passage of the Prop. 218 vote), will remain burdened with their CDOs and CAO’s hanging around their necks and encumbering their properties, to twist slowly in the winter wind.

This unsurprising decision was announced while the three Board members present coolly washed their hands of all responsibility in the flood of copious crocodile tears that flowed down from their bored eyes. Talk to the hand. Not our problem. Not our fault.

But the non-action item was not without its ironies and delights:

-- First off, a thank you to the last minute intervention of Paavo Ogren and the LOCSD, who agreed to split the cost of having AGP Video cover the meeting. The community owes them a real thank-you. As usual, the meeting will be broadcast over the usual channels and video-streamed from the AGP website. And hooray for AGP Video as well.

-- There was real confusion over what was supposed to happen at this meeting. It was understood that the Board had previously asked the staff to bring this item back for some kind of decision in Dec. Silly community. They thought that meant that the Board would actually do something about vacating the CDO’s, especially since by Dec, the Prop 218 vote would be in. Indeed, one member of the community, a CDO holder, noted that she voted “the right way” and trusted that since she had voted “the right way” that the Board would keep their part of the bargain – since everyone with an IQ larger than their shoe size knew that the point of stringing up those 45 was to coerce the whole town to “vote the right way,” but now she was shocked – shocked! – to find out that the Board wasn’t to be trusted!

Well, silly community. The staff had decided on another course of action and what should have been a possible action item was listed as an information item only, no action. Chairman Young then ‘splained that they had asked it be put on the agenda so “we could consider vacating CDO’s,” not that they actually might do that. Nope, just “consider” the idea. But before that could even happen, the Board’s lawyers met with them in closed session several times and advised them to do nothing about rescinding the CDO’s. Why?

Ah, now it gets interesting. Shauna Sullivan is to blame. Yep. In order to protect their homes, protect their civil rights and due process rights, some of The Los Osos 45 did the only thing they could do and did exactly what the law allowed them to do – walk through the constantly changing goal-posts of the RWQCB & SWB’s Mad Hatter Tea Party & Auto de Fe Public Hanging Civil Hearing Process, and then into a ‘real” court of law to get a ruling on the Board’s procedures.

Alas, following the rules and following the law governing the rules is exactly what the RWQCBoard didn’t like because actually standing up for one’s legal rights doesn’t allow the Board to play the role of noblesse oblige that they’re clearly so fond of playing -- and so, like the parent who beats his kid because the kid made him angry and then blames the kid because if he hadn’t made him mad he wouldn’t have to beat him, see? –the Board now wants this all to play out in the courts. As Boardmember Shallcross noted, he wants this all to stay in the courts to validate their methods to determine if what they’ve been doing is legal.

In short, Los Osos 45, you have been singled out to be the guinea pigs in the Board’s trial run at using individual CDO’s and CAO’s as a state-wide enforcement tool to get certain votes to go the “right way,” and/or get built whatever the RWQCB wants built. In other words, when governments fail the citizens, the RWQCBoard wants a new tool to punish citizens for their government’s failure. And lest the rest of the citizens in the Los Osos PZ think they’re somehow off the hook, they’re not, they’re next.

--As further reasons for keeping The 45 hanging in the wind, Chairman Young cited a comment in the Tribune from CSD Board member Julie Tacker threatening to “derail” the Tri-W project if it landed back in the middle of town. What makes Young’s citation of Ms. Tacker’s quote as a reason to keep The Los Osos 45 strung up so funny is that during the Mad Hatter Tea Party “trials,” it was Mr. Young who was ADAMANT that newspapers were NOT a credible source of any information so NOTHING in a newspaper would be admitted into evidence and so would NOT be allowed to even be brought before the tender eyes of the Board.

Yet here was Chairman Young citing a [out of context] quote from the Tribune as a direct reason to keep the 45 strung up. Even funnier, Tacker herself stood up during public comment to note the irony there and asked that before staff or even Young based any decision on that quote – in the non-credible newspaper – he could easily have called her and gotten the context correct.

But even stranger is this: Chairman Young noted that he was afraid that if the county picked Tri-W the citizens would – again – derail such a project. What’s Chairman Young’s obsession with Tri-W? Why would he think the County would pick Tri-W? That project came in dead last on the TAC’s evaluation process. Heck, even the Peer Review Dr. T Group listed Tri-W as at the bottom of the heap.

Then Board member, Monica Hunter, during Supervisor Gibson’s brief update of the 218 vote, tried to make a comment and the Board’s lawyer kept trying to shut her up. After some wrangling, Ms. Hunter’s observation to Gibson became a bell that couldn’t possibly be un-rung.

And what was her comment that had the Board’s panties in a twist? Just this – Morro Bay has recently been designated a national marine estuary and as such the rules governing what happens near it, around it, upwind of it, upstream of it, downstream of it, have changed. And Ms. Hunter wanted to caution the county that in their due diligence evaluation process they needed to be aware of those new rules.

Translation? Near as I could see, it was a warning shot across the bow that at least one member of the RWQCB fully intended to take another look at the Tri-W site, should that site be chosen for a sewer plant. And that second “look” would NOT be benign. No smiley faces this time. No phony SOC. Instead, lots of diligence – at least from one RWQCBoard member.

So why the flurry to shut Ms. Hunter up? Why the “fear” that the county will pick Tri- W? Does the Regional Board know something we don’t know, but should??? It’s no secret RWQCB CEO Roger Briggs has been playing Hobson’s Choice with Tri- W for years. There was a reason why Pandora Nash-Karner emailed him to beg him to “fine the CSD out of existence” even before the recall was certified. And a reason Roger replied that he was way ahead of her and clearly had been working on doing just that even before the election. And now that the County has the project, are those sticky little fingers now melding with sticky little fingers from Chairman Young?

-- and then for some comic relief came Mr. Golden to observe drolly that if Los Osos wanted better treatment the community should change its name from Los Osos to . . . Olin.

It was a reference to an earlier agenda item concerning Olin chemical company that had contaminated the water basin of Morgan Hill and environs with thoroughly nasty perchlorate and the Board was considering the various staff recommendations as to the severity of the Clean Up and Abatement Order requirements – from relatively minimal to harshly pro-active. What made the contrast so interesting is that the Board spent a lot of time wringing their hands over choosing between A and C, with Mr. (“Kumbaya”) Shallcross noting that he really wanted to vote for C (higher severity level/pro-active) and Oh, Oh, Eeeuuuuu, he would hate himself in the morning for NOT voting for C, but, oh, well, he’d back off and vote for some lesser requirements, oh, dear, oh, woe.

So for Olin chemical company, compassion and Christmas candy. For The Los Osos 45 – coal in their shoes. Season’s Greetings.

-- And, then there was this: One of the cases cited during the original Mad Hatter Tea Party “trial” was the curious case of Morongo vs. RWQCB/SWB – a case that has been appealed several(?) times now and is heading for another major hearing. That case had to do with the fairness of a regulatory board using staff as prosecutors in their various Mad Hatter “trials.” The argument is that there is an inherent bias when a member of the staff is interacting on a day to day basis with the Board -- “all cozy and chatty as Auntie,” to quote poet John Giardi – and then comes the “trial” and poof! There he/she is acting as Prosecutor to the Board members who Poof! are now acting as Judges. (To avoid “Morongo” was one of the reasons the original Mad Hatter Tea Party was shut down, the Grand Inquisitor was brought in from Sacramento, and the whole mad process started over – which still left all the bells in the Board’s ears tainted and un-rung since the 45 and the original Board (Judges) remained the same.)

But at this hearing, if you wanted a perfect illustration of just what Morongo was about, you only had to whip out your cell phone and take a snapshot of the dais. There, sitting at the left hand of Chairman Young, was Roger Briggs. Cheek by jowl, elbow to elbow, Tweedle-Dee, Tweedle-Dum, Brothers in Arms, Bosom Buddies, Trenchermen at The Dais, nameplates and heads often barely inches apart.

Morongo doesn’t get any clearer than that.

-- meantime, as per Supervisor Gibson’s report, on Dec 18, the BOS will open the month-long “window” to challenge the recent 218 election. It’s during this period that anyone wishing to file a protest lawsuit & etc. can do so. After Jan 18th, that window will close.

Also, meantime, the county chugs along with the project. On Dec 18 at the Community Center in Los Osos, will be an EIR scoping workshop. Public welcome, though it’s a puzzle to me what remains to be “scoped, since the original EIR (the one that was overridden by the old (and now removed) unsupported SOC – the one about “overriding community values” that nobody seems able to track down, though Lord knows Ron Crawford over at www.sewerwatch.blogspot has been trying for years – talk about due diligence!) still seems to be mostly valid in and in little or no need of updating.

On the other hand, perhaps that Scoping workshop will be the time to bring up RWQCB member Hunter’s, advice concerning Morro Bay’s new status?

And now for folks who don’t have CDOs, maybe citizens in the PZ who have not been singled out to be jerked around and hammered for two years then left to swing in the wind, folks who might not understand what it feels like to get coal in your shoes this Christmas, the following remarks were prepared to be read during public comment, and printed with permission from CDO holders, the De Witt-Moylans.


December 7, 2007


RWQCB REMARKS

On April 27, 2006, the day before the first RWQCB CDO hearing Senator Susan Collins of Maine said, The first obligation of government is to protect our people.

At a CDO hearing on December 15, 2006, Chairperson Young said,
CHAIRPERSON YOUNG: Okay. This is a
cumbersome procedure, but it actually goes towards
higher levels of due process being offered,
believe it or not.

On May 10, 2007, Vice Chairperson Jeffries, who was not present at the January 22, 2007, hearing and had to base his vote on the record of that hearing said,

RWQCB meeting Transcript for May 10, 2007
P. 47
VICE CHAIRPERSON JEFFRIES: I read all
202 pages.
CHAIRPERSON YOUNG: Okay. And did you
watch anything?
VICE CHAIRPERSON JEFFRIES: No, I did
not. When I found out the length of the meeting
my wife wouldn't let me tie up the DVD that long.
(Laughter.)
VICE CHAIRPERSON JEFFRIES: So I read
all 202 pages during "Deal or No Deal".


Vice Chairperson Jeffries subsequently voted to issue two Cease and Desist Orders that day based on that record. No one on the board objected or made any reference to his comments. The transcript to which he jokingly referred contained evidence of extreme hardship and duress endured by the CDO defendants sitting before him.

None of you has any idea what it is like to be us. None of you has any idea what it is like to come home to a hysterical phone message from a CDO co-defendant saying, “I can’t take it anymore; I’m going to kill myself!”

You have no idea what it is like to be us. And so you can make jokes or tolerate jokes about our lives and deceive yourselves into believing that the CDOs are not burdensome. In fact, the human cost has been and continues to be incalculable.

By deciding not to vacate these CDOs but instead to consider further individual enforcement, you continue to fail in your obligation to protect the people. Holding citizens accountable for failures of government is irresponsible and unconscionable.


“The first obligation of government is to protect our people.”
-Senator Susan Collins of Maine

And

“I’d like to start by saying that unlike “Olin” corporation, who has a way to remediate their pollution, we residents on septic systems have no way to remediate the use of our septic system personally that the board is willing to accept.

You stand at a juncture where to take no action on the CDO’s you have issued is a cowardly act. You have stated that you want to treat everyone in the “Prohibition Zone” equally, and yet 13 CDO’s exist and have existed for almost a year now. 25 settlers face the same fate. Your resolve to do nothing on these enforcement actions keeps us recipients at a distinct disadvantage from the remaining 4500 homeowners in the “Prohibition Zone.” This is unfair and unequal treatment. It has been unequal treatment for almost two years now. How can you consider yourselves unbiased when just 38 households out of 4500 bear the burden of enforcement actions and have borne them for almost two years?

This is what having a CDO has done and continues to do to us:

It keeps us from getting a loan on our home for the full value of what we could borrow if our home were unencumbered.
It has cost us thousands of dollars and countless hours, days, and months of living a normal life while the rest of the community continues to lead lives untrammeled by regulatory actions.
We have put holds on our plans to remodel our home, not knowing if we must walk away from our property on January 1, 2011. As Matt Thompson said on April 28, 2005, “You will have to vacate the premises.”
Our doctor’s visits have increased as a direct relationship from the stress of this two-year long process. My wife has had several $7000 infusions to help with her immune disease. Prior to this harassment by the water board she was symptom free for almost a year. I have developed chronic heartburn, something I never had before our proposed and subsequent CDO.

This is what your own board members have said or done:

When I asked Michael Thomas how he would feel if his own mother had received a CDO, he said, “I wouldn’t like it.”
Mr. Hayashi said, “ I don’t know what I would do if I got a CDO.”
When I told Matt Thompson that I wanted to build an on-site, completely enclosed system that would not allow my wastewater to enter the soil, he said, “You don’t want to go that way, Bill.”
When we asked repeatedly for an extension of our hearing, we were denied each time, even after we complied with a twenty-page letter explaining in detail why we needed an extension. When I specifically asked Michael Thomas just what “substantial justification” for an extension was, he said he would get back to me with an answer from the chairman. He never got back to me with an answer.

But these men on the Water Board who sit in judgment of us are all honorable men. These are men who have promised to be fair to all. These are men who would not dream of having something done to members of their families like what they have done to us.”



Unfair and unequal treatment? Of course! Unfair and unequal treatment goes along with being held hostage as a guinea pig so the RWQCB can “validate” their procedures. They don’t call it Waterboarding for nothing.

Merry Christmas.