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.
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
Posts
