City Gets Boost in Sewage Fight : Waste: U.S. District Judge Rudi Brewster calls a $500-million treatment-plant upgrading ‘gold-plated’ and orders a Feb. 5 hearing to determine whether it is necessary.

San Diego’s effort to avoid spending hundreds of millions of dollars to upgrade its Point Loma sewage treatment plant was given a boost Thursday when a judge called the federally mandated project “gold-plated” and perhaps excessive, and ordered a hearing to determine whether sewage piped into the ocean from the plant is really harming the environment.

The decision to hold a hearing, at which scientists will testify as to whether the ocean outfall is destroying plants and animals living near the end of the 2-mile pipe, was a victory for the city. It contends that there is no significant harm to the environment and thus no need to spend an estimated $500 million on a new secondary-treatment plant.

Depending on the outcome of the hearing, scheduled for Feb. 5, the federal Environmental Protection Agency’s attempt to require secondary treatment at the plant may take several more years to resolve because of potential legal appeals.

“I’m ecstatic. Science has won and the people have won,” said Councilman Bruce Henderson, a foe of the EPA effort to mandate secondary treatment at the plant. “All we ever asked for was a hearing to prove our case. Now we’ll get one.” Henderson had a second reason to be happy, because U.S. District Judge Rudi Brewster allowed him to intervene in the lawsuit as an individual separate from the City Council.

Brewster’s decision to hold an evidentiary hearing adds to the long history of conflict between the city and the EPA, which sued the city to force compliance with federal Clean Water Act standards.

From 1981 through 1986, San Diego obtained temporary waivers from the act’s requirements to provide secondary treatment to remove about 90% of suspended solids from sewage. The city’s current advanced primary process removes about 80% of solids before effluent is dumped into the ocean off Point Loma.

But 3 1/2 years ago, the EPA told the city it would reject more waiver requests. As a result, the city withdrew its application in February, 1987, and eventually committed itself to a secondary-treatment program to settle the EPA lawsuit.

The new and far-reaching treatment plan embodied a fundamental reworking of the region’s sewage facilities, a comprehensive upgrading with many facets estimated to cost nearly $3 billion and take years to fully construct.

One part of the plan calls for transforming the Point Loma plant into a secondary-treatment facility at a cost of about $500 million.

Most of the $3-billion expense for the entire system would be financed through dramatically higher sewage bills, and the San Diego City Council has already begun the politically unsavory task of approving higher sewer rates in anticipation of the project.

For more than a decade, however, local scientists, including those from UC San Diego’s Scripps Institution of Oceanography, have contended that effluent from the outfall does not harm the ocean environment and may, in fact, even enhance it. Other scientists, though, argue that secondary treatment would improve water quality.

The views of the scientists were aired outside court proceedings in newspapers, magazines and congressional testimony. One of those rallying the scientists most recently has been Councilman Henderson.

But, in a surprise move in August, those views suddenly made it into court. At a routine hearing, Brewster said he had read about some of the marine scientists’ doubts, and they troubled him. He ordered attorneys in the case to file briefs on whether he had the authority to exempt the city from the expensive project.

The San Diego City Council, eager to save hundreds of millions of dollars, reversed itself and, early last month, voted to ask the judge to allow the city to reactivate its clean-water waiver.

On Thursday, Brewster said that, although he is now convinced he doesn’t have the authority to exempt the city from providing secondary treatment, he does have the power to approve or reject the consent decree between the city and EPA settling the lawsuit.

In order to approve the consent decree, Brewster said, he must find that it both complies with the Clean Water Act and is in the public interest.

As to the former, the judge said, there is no question that the proposed $2.8-billion sewage plan meets the requirements of the act. But he said the cost of the system, in light of what marine scientists have said, seems unnecessarily high and may not be in the public interest.

“The question I’m bothered about is if it’s excessively adequate . . . is it a gold-plated solution” to a problem that could also be solved by an equally adequate and efficient system “as the one before us but at much less cost?” Brewster said.

“If, in fact, the environment is not being damaged by what San Diego is doing . . . then it may be in the public interest” not to approve the consent decree, he said. Brewster said he wants the city to take the scientific evidence gathered at the hearing to the EPA.

At the hearing Thursday, Brewster decided on several things:

* He ordered the Feb. 5 hearing to determine whether there is significant environmental damage being caused by the Point Loma outfall. Attorneys will be allowed to call scientists and other experts as witnesses.

* He will withhold approval of the consent decree if there is enough evidence showing that there is not significant harm to the ocean environment. He said that will allow the city to reapply for an EPA waiver and exemption. Attorneys for the city said they will initiate the process next month but said it may take six months to a year and hundreds of thousands of dollars to fully complete the detailed application.

* He said that if, however, the evidence shows there is significant damage, the consent decree will be approved and the city will be required to move forward with its mandated sewage treatment plan.

The judge placed two conditions on the city pending the final outcome of the waiver. He said the city must comply with all other aspects of the sewage treatment plan except for the Point Loma plant’s upgrading, which he said was 10 years away under the city’s schedule of proposed improvements. Those are the reclamation plants and ancillary treatment facilities that make up the bulk of the nearly $3 billion project.

And, he said, the city must seek its waiver and exhaust its administrative remedies, including appeals, as quickly as possible.

The Feb. 5 hearing will be held in conjunction with a previously scheduled hearing at which the EPA is attempting to collect millions of dollars in penalties from the city for violating the Clean Water Act in the past. That hearing is expected to take several weeks.

Gerald F. George, a U.S. Department of Justice attorney representing the EPA, argued against delaying approval of the consent decree, saying that, regardless of what Brewster determines at the Feb. 5 hearing, the city will still be required to meet secondary treatment standards. He said the consent decree had already been approved by the City Council at least twice and doesn’t lock in a specific way of meeting secondary treatment standards.

He said he was concerned about the proposed construction timetable being allowed to lapse.

James Dragna, a private attorney hired by the city to handle the case, said he expects the EPA to reject the city’s application for a waiver based on the agency’s prior stand.

In response, the judge said Dragna shouldn’t be so pessimistic. Brewster said he views the case less as an adversarial proceeding than as round-table discussion in which all parties have the same goal. “There are scientific truths out there that people haven’t heard yet,” the judge said.

Robert Simmons, an attorney representing the Sierra Club in the lawsuit, said he was disappointed with the judge’s decision. The Sierra Club, Simmons argued in court, wants the consent decree rejected.

He said the environmental group had several concerns, among them whether there is an avenue for implementing new and more environmentally sensitive sewage treatment technology; whether the planned system uses too much water without reclaiming more, and whether the proposed project relies too heavily on very large amounts of chlorine, an element of the system about which the judge said he, too, is concerned.

Brewster said he will address some of the Sierra Club’s concerns at the conclusion of the Feb. 5 hearing.

Simmons asked the judge what he would do if, even in the face of new environmental evidence, the EPA rejects the city’s waiver application.

“I don’t know,” replied Brewster, saying the case could then be appealed.

“We could be in this courtroom for two years” arguing about the waiver and consent decree, Simmons said, adding that the Feb. 5 hearing will turn into a duel of scientists.