Judge Fines S.D. $3 Million for Sewage Spills, Ills : Environment: He cites the city’s ‘outrageous record’ of sewage spills and its almost continuous violation of the Clean Water Act since it was enacted in 1972.

In a serious, perhaps fatal, blow to San Diego’s bid to avoid a multibillion-dollar upgrading of its sewage system, a federal judge Thursday fined the city $3 million for “causing significant harm to the marine environment” through its inadequate waste-water treatment.

Accusing San Diego of having an “outrageous record” on a critical environmental question that has been debated for more than a decade, U.S. District Judge Rudi Brewster concluded that the city’s failure to comply with clean-water laws has damaged marine life off Point Loma, where the city pumps nearly 190 million gallons of treated sewage daily into the ocean.

In addition to adversely affecting kelp beds, unlawful levels of disease-carrying bacteria that drift toward the shore off Point Loma pose a health risk to scuba divers and other recreational water users, Brewster said in his 17-page decision.

“The city has been in violation of the Clean Water Act almost continuously since the statute was enacted in 1972,” Brewster wrote, attributing the problem to “a failure of political leadership dating back at least three decades.”

Brewster’s ruling represented a major victory for the U.S. Environmental Protection Agency and the state of California, which jointly sued San Diego for what they characterized during the seven-week trial as thousands of violations of the U.S. Clean Water Act and California Ocean Plan.

“We’re very pleased with both the tone and the content of the court’s ruling,” said EPA regional attorney Hugh Barroll. “It’s a very positive, forceful step toward (upgrading the city’s sewage) treatment.”

Some key details about the specifics and timing of the upgrading of San Diego’s sewage program will not be spelled out until a hearing later this spring when Brewster reviews a proposed consent decree between the city and the federal government.

Though Thursday’s ruling could eventually compel San Diego to proceed with a $2.4-billion-plus secondary sewage treatment program, some top city officials hailed it as a fair, equitable decision that could help to finally conclude one of the longest, most contentious environmental battles in the city’s history.

“The judge has closed the door on the past and said he isn’t going to punish us much for our failures,” Mayor Maureen O’Connor said.

Only $500,000 of the city’s penalty will be a direct payment to the U.S. Treasury, with the remaining $2.5 million being allocated for a “credit” water conservation project aimed at retrofitting homes with water-saving devices such as low-flow faucets and toilets. Federal attorneys had requested a $10-million fine, with all of the money going to Washington.

“We should consider ourselves lucky and decide it’s time to move forward,” O’Connor said.

It will not be certain until at least next week, when city attorneys brief the council on Brewster’s decision, whether O’Connor’s opinion is the consensus on the City Council.

Indeed, despite Thursday’s one-sided decision, which was laced with sharp criticism of San Diego’s existing sewage treatment and its elected officials’ performance, Councilman Bruce Henderson remained unwilling to abandon his opposition to so-called secondary sewage treatment, one of the costliest components of the city’s overall plan for upgrading its waste-water program.

Henderson, who intervened in the federal suit in an attempt to block the imposition of secondary standards that he and some marine biologists argue would do little, if anything, to improve water quality, said after Thursday’s ruling that the city should continue to pursue a waiver from those regulations.

Although Brewster specifically preserved the city’s right to seek the waiver, even Henderson conceded that the judge’s ruling “makes it a lot tougher for us.” Still, Henderson said that he intends to try to persuade the council to continue seeking the exemption, coupled with a plan to double the length of the 2-mile Point Loma underwater sewage pipe, an extension that he argues would eliminate many of the environmental concerns that Brewster identified.

“Though we might have to spend $100 million to extend the outfall (pipe), there still are billions of dollars to be saved,” Henderson said.

O’Connor and other council members, however, vehemently disagreed with Henderson’s suggestion, arguing that it could be interpreted as political recalcitrance.

“To be politically popular, it would be easy to say we’re not going to spend a nickel on this,” Councilman Ron Roberts said. “But, if we do that, I’m afraid we’re going to run into a federal hurricane. The judge seems to be saying, ‘I’m going to be easy with you, but let’s get going.’ ”

Similarly, O’Connor added that Brewster’s ruling “eliminated whatever slim doubt there was” about the city’s admittedly long-shot prospects of obtaining a waiver that the EPA initially denied in 1986.

“The EPA has always made it very clear that we were never going to get a waiver, and the judge’s ruling certainly doesn’t make it look more promising,” O’Connor said. “If Mr. Henderson still wants to try to do something, he should go to Washington and try to change the law. But his chances of doing that are about as good as you or me winning the Oscar.”

Though Brewster’s decision did not, in the words of one city attorney, “absolutely slam the door in our face,” the judge appeared to stop just short of that in his attitude toward the city’s longstanding opposition to secondary treatment.

From 1981 through 1986, San Diego obtained temporary waivers from the Clean Water Act’s requirement that cities provide secondary treatment to remove 85% of suspended solids from sewage. The advanced primary sewage treatment process now used removes about 76% of the solids from waste water before it is discharged into the ocean, evidence in the trial showed.

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.

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 up to $2.8 billion by the year 2003--an expense that would be financed largely through dramatically higher sewage bills.

O’Connor said Thursday, however, that she remains hopeful that the federal government might fund at least 50% of the sewage treatment plan, which would be the largest public-works project in San Diego’s history.

From the beginning, there has been a division of scientific opinion over the environmental impact of secondary treatment. While 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 not only does not harm the ocean environment, but may, in fact, enhance it.

The scientific evidence that prompted the council last fall to renew the city’s bid for an exemption, however, failed to convince Brewster.

On some days, the judge wrote, bacteria levels in the water off Point Loma are more than 100 times the legal limit, endangering the health of divers and others using the ocean. The sewage discharges also have damaged kelp beds and altered microscopic organisms’ populations surrounding the outfall pipe, Brewster added.

“We’re disappointed, because we felt the evidence showed that, while there was a statistical change, there was no significant harm to the marine environment,” said James Dragna, a private attorney retained by the city to handle the lawsuit.

Brewster was especially critical of the city’s “outrageous record” of 3,701 raw-sewage spills between July, 1983, and December, 1990. The resulting beach closures and property damage to homes and businesses, Brewster said, stemmed primarily from the city’s deferral of hundreds of millions of dollars in needed capital improvements to replace aging pipes, upgrade pump stations and make other improvements.

“The City Council consistently responded by refusing to spend one dollar more than minimally necessary,” Brewster said.

In light of Thursday’s ruling, the major remaining question, attorneys on both sides agreed, is whether the city will continue that strategy by pursuing the waiver, or accept the need for secondary treatment and the unpleasant financial realities that accompany it.

“It’s true that the judge didn’t slam the door in the city’s face, but the EPA never wanted him to, because it wasn’t his place to do so,” the EPA’s Barroll said. “And the city certainly is free to seek the waiver. But I don’t see anything in this decision that would give them much encouragement to do that.”