Squaring Off in Sewage Debate : THE LEGAL ARGUMENTS : The EPA’s Position

In 1972, Congress enacted the (Clean Water Act). The objective of the act is to “restore and maintain the chemical, physical and biological integrity of the nation’s waters,” by reducing and eventually eliminating the discharge of pollutants . . . .

This legislation was not Congress’ first attempt to address the problem of water pollution. Prior to 1972, the focus of the Federal Water Pollution Control law was on the quality of the receiving waters. . . . This method of water pollution control led to substantial problems in enforcement, however.

Congress was very aware of the failure of its earlier efforts . . . . In establishing the 1972 Clean Water Act, Congress deliberately abandoned its focus on the actual harm caused by an individual discharger, and instead made the primary mechanism . . . the control of pollutants at the point of discharge.

Moreover, the new congressional goal was no longer merely the attainment of a certain level of water quality, but the eventual elimination of all pollution entering the waters.

The Clean Water Act imposes strict liability. To prove liability, plaintiffs need not prove that the violation of (a permit) was intentional, knowing or negligent, but need only prove that the violation occurred.

Since July, 1983, the city has submitted to the EPA and the (state) self-monitoring reports which specify concentrations of pollutants in the city’s waste-water discharges and the concentrations of pollutants in the receiving waters. The city’s own . . . data shows numerous violations of the effluent limitations of the city’s permits.

The permits required the city, among other things, to maintain its treatment system in good working order and to operate as efficiently as possible. There is no question that the city’s unplanned discharges of raw sewage . . . violated the . . . conditions.

Between July 27, 1983, and June, 1990, the city has spilled raw sewage from its collection and conveyance system on at least 3,073 occasions.

Moreover, the city’s argument that these spills were beyond its control is without merit. With respect to grease spills, for example, which have consistently caused almost half of all the spills annually, . . . there are many ways for the city to prevent spills . . . . One way is to require that restaurants install grease collection devices, which prevent grease from entering the sewer system. The city has recently embarked on such a program and has indicated its strong belief that this program will substantially cut down on grease spills. This contradicts any claim by the city that grease spills were beyond its control.

. . . There is no question that the city’s violations of its permit and the Clean Water Act are very serious. Of (3,073 spills), at least 398 have reached public waters. This amounts to an average of 57 spills to public waters each year. These spills have dumped a total of approximately 50 million gallons of sewage into sensitive ecosystems and waters heavily used for recreational activities. These discharges of raw sewage contain extremely high levels of bacteria and other microorganisms which threaten public health. As a result of these spills, portions of Mission Bay and the other public waters . . . were closed on numerous days . . . .

With respect to secondary treatment . . ., the city’s violations (have) led to the very impacts to the marine environment which Congress sought to prevent.

It is no defense here for the city to argue that there has been no discernible, lasting harm . . . . The act, its legislative history and case law . . . make clear that seriousness of violations does not require a showing of environmental damage.

The court has placed the burden on intervenor (Councilman Bruce) Henderson to establish that the city’s current discharge is not causing “significant harm to the marine environment.” In determining (this), the court should apply the criteria set forth . . . in the Clean Water Act. Two legislative findings of unacceptable environmental impacts from marine outfalls are directly applicable here. They are the provisions which require the protection of balanced indigenous population of shellfish, fish and wildlife” and the protection of “recreational activities, in and on the water.”

As shown below, the application of these criteria to the city’s discharges demonstrates that significant harm has occurred . . . .

A basic community of the marine environment is the organisms that reside in the sediments at the bottom of the ocean. The sediment dwelling creatures are referred to . . . as “benthic” organisms. Benthic organisms are vital to the food chain because they convert nutrients in sediments to flesh and are consumed by . . . fish.

It is clear that a changed assemblage of benthic organisms exists in the area affected by the Point Loma outfall discharge. Sampling . . . shows that this impact extends approximately 2 miles. This change is primarily the result of the mass loadings of pollutants to the Point Loma marine environment. Earlier compliance with the secondary treatment standards, . . . would have decreased the impact . . . .

In 1983, the state of California amended the California Ocean Plan to provide that bacteriological water quality standards applied to “kelp beds” because of the recreational uses of those areas for snorkeling, scuba diving, fishing and shellfishing.

The data from monitoring stations in the kelp beds show that the bacterial concentration limits have been routinely violated at the offshore edge of the kelp beds since 1985.

The excessive number of coliform bacteria indicate an increased risk to the health of kelp-bed recreational users. Data from other indicator organisms . . . have confirmed the increased risk.

It is well-settled law that efforts to comply on the eve of litigation are highly suspect. It is also a hallmark of good faith compliance that it does not await the sheriff’s knock at the door. The city’s violations are not sporadic exceptions to a generally good faith attempt to comply with its permit. Rather, the record here is clear that the city has not attempted to comply . . . .