U.S. Urges ‘Strong Signal’ in Sewage Trial : Environment: Federal, San Diego attorneys make final pleas in clean-water case with billions of dollars at stake.

Urging a federal judge to “send a signal” to San Diego and the nation over the city’s persistent violations of clean-water laws, U.S. attorneys asked Tuesday that the city be fined $10 million and ordered to substantially upgrade its sewage-treatment program.

In closing arguments in a trial that could determine whether San Diego will have to spend more than $2.6 billion for new sewage-treatment facilities, U.S. Justice Department attorneys told U.S. District Judge Rudi Brewster that the city’s failure to comply with sewage-discharge laws has damaged marine life off Point Loma, where the city pumps nearly 190 million gallons of treated sewage daily into the ocean.

Citing thousands of violations of the U.S. Clean Water Act and California Ocean Plan over the past seven years, the government attorneys said the city’s frequent sewage spills and inadequate treatment also have interfered with recreational use of the ocean and Mission Bay, as well as raised potentially severe health risks.

“Voluntary compliance can only be achieved if the possibility of substantial penalties are real,” attorney Michael Goodstein told Brewster, whose ruling could come as soon as later this week. “This court needs to make that a harsh reality for the city of San Diego and potential violators nationwide.”

City attorneys, who are expected to conclude their closing remarks today, argued in response that San Diego’s sewage discharges from an underwater pipe about 2 miles offshore have not harmed the ocean’s environment.

Expanding on that point, Mark Pulliam, an attorney for Councilman Bruce Henderson added that, since San Diego’s existing sewage disposal methods pose no serious ecological threat, the city should be given more time to seek a waiver from the secondary-treatment standards at the Point Loma plant.

Monday’s five-hour court hearing ranged in tone from arcane, exceedingly technical details over sewage’s impact on microscopic organisms such as the brittle starfish--the phrase “balanced indigenous populations” was much bandied about by Pulliam, for example--to quotations from Dr. Seuss’ “Horton Hears a Who” being used to make points.

Amid a somnolent blur of statistics and diametrically opposed scientific theories, there also were occasional flashes of humor, as when Sierra Club attorney Robert Simmons described his client as “the proverbial mugwump.”

“Our mug is with the city on the penalty issue, but our wump is with the plaintiffs . . . over the city’s chronic and consistent violations,” Simmons said, drawing smiles and chuckles in the courtroom.

Regardless of their tack, the competing attorneys used their closing arguments not only to capsulize the complex seven-week trial but also to summarize a contentious debate that has become increasingly bitter--and potentially costly--over the past decade.

From 1981 through 1986, San Diego obtained temporary waivers from the Clean Water Act’s requirement that cities provide secondary treatment to remove about 90% of suspended solids from sewage. The city’s advanced primary sewage treatment process now removes about 80% of the solids from waste water before it is discharged into the ocean.

After the U.S. Environmental Protection Agency indicated that the city’s request for a waiver extension would not be granted, the city withdrew its application in February, 1987. Viewing secondary treatment as inevitable, some city leaders believed, based on federal officials’ intimations, that by abandoning the waiver request, San Diego would be better positioned to attract federal funds to help pay for the costliest public-works project in its history.

Under a subsequent agreement between the city and the federal government, San Diego committed itself to the secondary treatment program to settle an EPA lawsuit stemming from the alleged violations of the clean water standards. In addition to upgrading the Point Loma plant, the program includes construction of a new South Bay facility and six water reclamation plants at an estimated cost of $2.6 billion to $2.8 billion by the year 2003--an expense that would be financed largely through dramatically higher sewage bills.

From the beginning, however, there has been a division of scientific opinion over the environmental impact of secondary treatment.

Some marine scientists argue that secondary treatment would improve water quality, others--notably several at UC San Diego’s Scripps Institution of Oceanography--contend that the city’s existing sewage treatment process not only does not harm the ocean environment, but may, in fact, enhance it.

After Brewster himself questioned the need for secondary treatment, the council last fall decided to renew the city’s bid for an exemption--setting the stage for the current trial.

In their arguments, the federal attorneys portrayed San Diego as a recalcitrant municipality whose leaders consciously violated the nationwide water standards and lacked the political will to face the admittedly tough financial realities needed for compliance.

Among other problems, the city’s failure to replace aging water mains and make other necessary improvements resulted in 3,701 spills of raw sewage from July, 1983, through December, 1990, federal attorney Karen Dworkin said Monday.

“Many of these spills could have been prevented if the city had planned ahead . . . rather than try to patch a hole here and plug a leak there,” Dworkin said.

By delaying the federally mandated upgrade of its sewage system, San Diego saved more than $300 million, Dworkin and Goodstein said. In addition, based on the maximum fine of $10,000 to $25,000 per violation, the city could face a penalty of more than $229 million for the last three years alone, they added.

The $10-million fine requested, however, is sufficiently large to demonstrate that the state and federal water standards “cannot be ignored for years without substantial penalty,” Goodstein said.

“This is not a numbers game,” responded James Dragna, a private attorney retained by the city to handle the case. Most of the alleged violations, he argued, occurred only because the city was in good faith pursuing the waiver. Moreover, by seeking a financial penalty far below the maximum, the federal government is simply trying to posture before the court with a disingenuous “monumental leap of benevolence,” Dragna added.

Though the city intends to proceed with various sewage treatment improvements covered in the consent decree with the EPA, Dragna urged Brewster to allow San Diego to pursue the waiver from the secondary standards. If granted, the exemption would preclude the proposed Point Loma plant upgrading, a costly component of the overall program.

A compromise perspective was offered by Simmons, the Sierra Club attorney.

As a middle ground, Simmons suggested that, in lieu of a large fine to the U.S. Treasury, most of any penalty assessed against San Diego should be used for a “credit project” to enhance the city’s overall water policy. Specifically, Simmons proposed a $5.5-million settlement--a $500,000 fine coupled with a $5-million water conservation project.

“Both (sides) are smelling penalties . . . and rushing for the trough,” Dragna said. “That’s unseemly. This is not a Sears catalogue where everyone walks up and identifies the project he wants.”