Water Board Assailed for Its ‘Cooperative’ Stance on Pollution

Strike up a conversation with almost any of the members of the appointed board charged with guarding water quality in the San Diego region, and sooner or later they will start explaining the importance of a “cooperative” approach to polluters.

They’ll say that the board’s purpose is to solve pollution problems, not necessarily to fine or punish those who pollute. They’ll argue that it is more effective to persuade polluters to spend their money on solutions, rather than to fritter it away in fines.

“I think we’ve always had a very conservative board,” observed Norma Scheuneman of the California Regional Water Quality Control Board in San Diego. “ . . . I don’t feel that fining an entity, especially if it’s taxpayer-supported, is that good a solution to the problem.”

But the “cooperative” posture of the San Diego board has come under fire in these times of rising public concern over water quality. In recent months, a series of major pollution cases have catapulted the once-obscure board into the public eye.

There was the spill of 4 million gallons of untreated San Diego sewage into Penasquitos Lagoon, and the dumping by the City of San Diego of 171,135 cubic yards of sewage sludge at Brown Field. Then came charges that a major defense contractor had spilled cancer-causing chemicals in San Diego Bay.

Suddenly, the water quality board is in the limelight. Its staff has recommended record fines, a sewer hookup moratorium and consideration of a criminal investigation. But repeatedly, the board has pared down the penalties, favoring the “cooperative” approach.

Now some critics have accused the board of pulling its punch, not exercising its powers and allowing polluters the upper hand. Filing a lawsuit against one alleged polluter this month, two San Diego attorneys charged that the board had been delinquent in its duties.

Meanwhile, a state water board evaluation of the performance of the local agency concluded this summer that many of the public agencies and private firms that discharge wastes into the region’s waters are not complying with the agency’s self-monitoring rules.

The evaluation flatly questioned whether the “cooperative” approach is working.

“Although the approach may have theoretical merit, our review indicates that, in practice, more of the cooperation was on the part of the Regional Board than the discharger,” concluded the evaluation by the State Water Resources Control Board.

Both the state evaluation and Times interviews in recent weeks revealed the agency in many ways to be dwarfed by the task of enforcing proliferating federal and state laws. Strapped for manpower and money, statistics suggest that it often fights a losing battle to keep up with polluters.

The report found numerous shortcomings in the voluntary compliance system that is the cornerstone of the regulatory system. It found board orders out of date, firms failing to submit their self-monitoring reports, and the agency failing to follow up on violations.

And while the report praised the board’s professional staff for its dedication and initiative, especially in view of “extremely limited” facilities, it recommended that the board move more decisively against the many dischargers the state board found to be violating agency rules.

Others, too, have made similar observations.

“I think it’s underfunded and understaffed, and I think that the people that are on there are afraid to exercise the power that I believe they have,” said one person who has appeared before the board on numerous occasions but who asked not to be named. “I think they’re a bunch of milquetoasts when they don’t have to be.”

“The bottom line is they’re too nice,” said Samuel Popkin, a former board member and an associate professor of political science at UC San Diego. “They’re such a nice group, they tend to assume the people they’re dealing with are as dedicated and honest as they are.”

Even the board’s vice chairman, who described himself as “maybe a little more action-oriented” than his colleagues, remarked on the need to preserve the board’s credibility and clout.

“The staff resources are very limited,” Gary Arant said. “Our greatest enforcement tool is our credibility. People have to know that if they don’t follow the law . . . they’re eventually going to get caught. They have to know we will come down on them.”

The board is one of nine regional panels formed around the state in the late 1940s and charged with protecting the state’s water quality. All nine boards fall under the umbrella of the State Water Resources Control Board, based in Sacramento.

The legislation that gave birth to the boards was enlightened, people say: The regions followed water basins rather than political boundaries. The idea behind local boards was to respect home rule and give dischargers a lay board to which to appeal.

Backing up the board is a 28-member staff of engineers, biologists and others on a state-funded annual budget of $2 million. The staff writes permits for dischargers, monitors their compliance and investigates violations. It also acts as prosecutor, presenting enforcement cases to the board.

But the board acts as judge.

Final decisions lie with the board members--nine appointees paid $75 for each meeting, which are held every six weeks. They are appointed to four-year terms by the governor, based on a mix of past experience and recommendations from local political leaders.

On the current board, the chairwoman, Mary Jane Forster, has spent a decade working for a water agency in public education and special projects. Vice chairman Arant, John Foley and James Mocalis all manage water districts in San Diego and Orange counties.

Charles Badger runs a citrus grove management business in Rancho Santa Fe and is president of the San Diego County Farm Bureau. Ernie Schneider is an executive assistant to the Orange County Board of Supervisors.

Harriett Stockwell is an El Cajon councilwoman and former head of the California League of Women Voters, Norma Scheuneman works for the Building Industries Assn., and Terrance Thielen is an environmental engineer with the Naval Ocean Systems Center.

All nine received their initial appointment from Gov. George Deukmejian or then-Gov. Ronald Reagan. Many knew local politicians or had been involved in local Republican politics. Their activities ranged from campaign work to serving on the county GOP central committee.

In years past, board meetings were relatively quiet affairs.

Scheuneman recalls 90-minute meetings back in the early 1970s: “It seems like we’d start at 9:30 and be out by 11 or 11:30.” Lee Olsen, president of the San Diego Council of Divers, recalls being a lone member of the public in meetings as recently as four years ago.

“The board outnumbered the audience,” recalled Olsen, whose organization has been attending regularly ever since. “There were only dischargers and the wives of members. When we came in, the board turned around and asked, ‘Who are these people?’ ”

These days, meetings fill entire days, and the July meeting lasted two days straight. Agendas have become as thick as phone directories. Even during work hours, members of the public crowd the hearing room. Mayors and city council members also show up.

Suddenly, the issues have become very controversial:

- In May, a board staff report proposed a moratorium on sewer hookups in northern San Diego until the city repaired its sewage Pump Station 64, which had spilled 58 times in seven years. It proposed a record $646,800 in penalties for the overflows, which had polluted a sensitive lagoon.

- The same month, the staff proposed an additional $643,706 in penalties for what it said were four years of illegal sewage-sludge disposal at Brown Field. The staff accused the city of illegally dumping 171,135 cubic yards of sludge, the solid byproduct of sewage treatment.

- In July, another staff report blamed PCB contamination in San Diego Bay at least in part on Teledyne Ryan, a major defense contractor and one of the city’s larger employers. State investigators had tracked the cancer-causing compounds over seven years.

- Also this year, the staff accused four San Diego County dairies of polluting creeks, creating stench and having more cattle than capacity to handle the waste. One dairy is currently appealing a $90,000 fine.

Even though the board has new powers--a 1985 law gave it the capacity to impose fines without going to court--board members have been less than eager to impose the financial penalties, or “administrative civil liability,” as the penalties are called:

- In the case of the pump station, the board rejected the proposed sewer moratorium as well as the immediate $646,800 penalty the staff initially had proposed. Instead, it fined the city only $11,391.95--the cost of draining the contaminated lagoon.

It voted unanimously to suspend the rest of the $646,800 fine and impose it only if the city failed to meet a prescribed $9.5-million repair schedule. It vowed to impose the moratorium immediately, as well as maximum fines, if there were another spill.

- In the case of the sludge dumping at Brown Field, the board again declined to penalize the city. As in the case of Pump Station 64, the board accepted the city’s word that the problem was being corrected and gave it a deadline for completion.

- As for Teledyne Ryan, the board simply ordered it to clean out its PCB-contaminated storm drain sumps. The agency remains undecided on whether it is wise to clean up the contaminated part of the bay, and it is now embarking on a search for other culprits.

- Rather than issue orders to the dairies, the board set up a dairy-board committee to try to resolve violations “informally” before elevating them for official board action. Whether the four dairies brought before the committee so far will take action remains to be seen.

The board did impose a $90,000 penalty on one dairy that had expanded its herd to three times the legal limit. The fine came after a dairyman’s lawyer and a judge remarked in court that the board had been threatening one dairyman for 10 years, to no avail.

The lawyer said: “We haven’t paid one penny.”

Hearing of the remark, the board bristled.

“I think that really torqued a few of the board members,” Arant recalled in a recent interview. “Because we’re trying to resolve the issue with these people, trying to point out that it’s not a good idea to have 1,200 cows on a dairy for 400. The residents are complaining, it’s a bad situation. Then to have a judge say, ‘I’ll bet you a new hat they won’t fine.’ It was almost like putting down the gauntlet.”

But, Arant added, “I’m not saying the board took action because the judge said that. Because we were going to do it anyway.”

Board members strongly defend the board’s decisions.

First, many of them question the worth of fining a public body when taxpayers will end up paying the fine. It is more effective to put the money into repairs, they say. In this case, the city agreed to $9.5 million in repairs and has promised to complete them by mid-1988.

The board’s executive officer, Ladin Delaney, said that, in the end, he recommended suspending the proposed fine and holding it out as a threat against future spills. He said he did so only after being assured by the mayor and city manager that the problems were being resolved.

“The board felt they accomplished their objectives as far as water quality control by getting the city to submit a schedule and adhere to it to correct the problems at Pump Station 64 and Brown Field,” Delaney said. “If the city misses that, I’m sure we’re going to take very quick action.”

As for Teledyne Ryan, Delaney defended the fact that it took seven years to trace the PCBs to Teledyne’s storm drains. During much of that time, the testing was being done by other state agencies with limited resources and obligations statewide.

In addition, he said, “I want to be darn sure of what we say before we go out and make this big proclamation. That’s why we approached it very carefully and systematically with Teledyne Ryan.”

He said the agency acted appropriately in requiring that Teledyne clean its drains but delaying action on the contaminated lagoon.

“I don’t know if Teledyne Ryan is solely responsible for everything in Convair Lagoon,” he said. “And you’re not talking about 50 cents or a dollar or $10 (to clean the lagoon). You’re talking about what may be a multimillion-dollar cleanup.”

Board members expressed similar views.

“I feel perfectly comfortable in fining, but that’s not a universal feeling on the board,” said chairwoman Forster, who has impressed fellow board members and members of the public. “ . . . What they’re saying is, ‘Let the person use their money in the proper way. Put it where it’s going to fix the problem.’ There’s a lot of wisdom in that philosophy.”

Even some of the targets of the board’s actions expressed satisfaction.

“Very gracious,” said Rod Donnelly of the San Diego Water Utilities Department, which operates sewers. “Those people on the board are . . . not going overboard, they’re doing their job.”

When informed of that comment, one board engineer responded: “Well, they got a hell of a deal with Pump Station 64!”

Finally, a former board staff engineer who now works as a private consultant to firms that appear before the board, defended the cooperative approach on practical grounds, suggesting that it is the only efficient way of enforcing the law.

“If you’ve got 10 problems and you cooperate with everyone, nine out of 10 will get solved,” said Greg Luke of Luke-Dudek Civil Engineers. “If you go in and try to strong-arm them, you end up in court with all 10 of them.”

But critics of the board say they are less impressed.

Michael Aguirre, who has filed suit against Teledyne Ryan in an effort to force it to clean up the lagoon, accused the board and staff of faltering in the face of the firm’s high-powered legal counsel and jeopardizing chances for eventual criminal prosecution.

“You’re faced with a situation with carcinogens in the lagoon. . . . It’s the worst levels in the state and they’re still conducting tests,” he said. “ . . . The word, I think, goes out to environmental violators that the law has no teeth in it.”

The danger of the cooperative approach, former board member Popkin argued, is that word of the problem never filters up to the people in a position to solve it. Only when the board becomes aggressive and attracts public attention do the people in charge respond.

Emily Durbin, a Sierra Club activist who served on the board for three years, accused the board of an excessive concern for the economic impact of regulation.

“When someone comes in and says, ‘You make me do this and spend all this money and I’ll go out of business,’ what are they going to say?” she said.

Some critics noted that the regional board in Los Angeles recently fined Los Angeles $150,000 for a 95,000-gallon sewage spill. That spill was far smaller than the 4-million-gallon one that spurred the San Diego board after 57 previous spills from the same pump station over seven years.

“Really, I think Los Angeles has been so grossly negligent in the past that we felt we had to do something really strong,” said Los Angeles regional board chairman Jack Witz. “ . . . We’ve seen enough, heard enough and there’s been enough damage. . . . Our board is willing to stick their necks out.”

Some members of the board, and even some of its critics, insist the San Diego board is changing. They cite the Whelan dairy fine, the threats to city officials and recent split votes on the controversial issue of lowering treatment standards for ocean discharges.

Many of them trace the more aggressive posture to the increasing public attention focused on the board and the growing public turnout at meetings. They say they see a new divisiveness and willingness to listen on a board once known for quiet, unanimous votes.

“The people want clean water, they want clean drinking water, they want clean bay water,” board member Terrance Thielen concluded simply. “It’s public pressure.”