Contending that an impossible-to-predict “avalanche of water” caused a massive sewage spill, lawyers for Thousand Oaks argued Thursday that the city should not be fined $2.3 million for the rupture.
In the first detailed accounting of Thousand Oaks’ defense against the proposed fine, lawyers outlined a two-pronged strategy they will pursue at Monday’s Los Angeles Regional Water Quality Control Board hearing.
In hundreds of pages of documents submitted to the regional board, city defense lawyer Robert C. Bonner said the wall of water amounted to an “upset” of the sewer system, for which the city is not responsible.
Moreover, Bonner and his experts assert that a two-year City Council stalemate over plans to upgrade the city’s waste-water treatment plant was irrelevant to the break, which sluiced 86 million gallons of raw sewage toward the Pacific.
Bonner, a former U.S. attorney and federal judge, argued that the upgrade could not have been finished in time for last winter’s rains even had the $75-million project been approved the first day the council considered it.
“The [regional board] staff has not presented substantial evidence to support” the proposed fine, Bonner said at a press briefing Thursday. “The city has provided substantial evidence to the contrary, so the city ought not be held liable in this instance.”
At the same time, some of the city’s documents point out that a majority of the council was prepared to pay for the sewer upgrade in November 1995--a defense that infuriated at least one councilwoman and made her fear she might become a scapegoat at the hearing.
“Why are they blindsiding two people?” asked Councilwoman Elois Zeanah, who, along with then-Councilwoman Jaime Zukowski, initially blocked the upgrade plans. “Why are they breaking the gag order and breaking a defense agreement we just signed? . . . Why are they opening up a political can of worms?”
If the city is held culpable, the documents released also provide reasons to whittle the fine.
Otherwise, Bonner said, taxpayers would be unfairly burdened while they are stand to pay premium for the spill’s after-effects.
Thousand Oaks’ defense did not persuade Dennis Dickerson, the water quality board’s executive officer.
Dickerson, who will personally make the case to board members for the full $2.3-million fine, reiterated that years of city documents warn that the sewer line should be replaced.
“I certainly do believe we have a very strong case and we intend to pursue it,” Dickerson said. “It’s really unfortunate the city continues to have the position where they are ignoring their own accountability for, and contribution to, this spill.
“Particularly because it’s been well understood for a very long time . . . that this line needed to be replaced.”
Would Be Largest Such Fine in State History
The voluminous documents released to the press are the city’s official response to state water regulators’ recommended fine of $2.1 million, the largest such penalty in state history.
Since May, that amount has been increased to a suggested $2.3 million based on new calculations about the economic effects of beach closures and the possible financial benefit the city derived by delaying the sewer line’s replacement.
Dickerson said he and his staff do not relish punishing the city.
“It’s very unfortunate that the spill happened, but the city allowed it to happen,” he said. “There has to be some consequence. This is not a question of what we’re doing to the city, but what the city has done to itself.”
The fine could be reduced, kept intact or raised to as much as $860 million at the regional board meeting Monday. Thousand Oaks’ hearing is expected to begin sometime after 9 a.m. in the City Council chambers of Camarillo City Hall, 601 Carmen Drive.
The environmental group Heal the Bay, which is often critical of the regional board’s enforcement record, has filed a letter with the regional board calling for a fine of at least $2.3 million.
“In our mind, there are no defenses available to Thousand Oaks that would relieve them of liability,” lawyer Steve Fleischli, the group’s legal and policy analyst, said earlier this week.
The suggested $2.3-million fine, he continued, “is the minimum sufficient. The way the law is set out, clearly Thousand Oaks is responsible for much more.”
Thousand Oaks’ defense documents raise a number of points claiming the city should not be penalized as severely as the board staff is suggesting:
* The sewer line washout did not just occur during a routine rainstorm. Rather, it came on the heels of a December storm that had scoured the Arroyo Conejo to the extent that the underground pipeline was exposed for the first time ever.
The Feb. 3 rupture occurred only after 25 tons of riprap protecting the pipeline had been washed away. According to flood control readings, the washout occurred as the arroyo recorded its single biggest jump in stream water height ever--a three-foot surge that brought the water height from 5 feet to 8 feet in a matter of five minutes.
* No significant environmental harm resulted from the washout. No fish or amphibians died because the sewage was diluted by the heavy rains.
* Because city consultants never deemed the replacement of the lower stretch of the ruptured pipeline an emergency, upgrading the system would not have occurred until this summer even had the waste-water plant project been endorsed from Day 1.
The upgrade was approved in its original form last year, and the sewer line replacement is taking place this summer and next. But that is only because emergency permitting has expedited the process.
* The portion of the proposed fine based on the economic impact of beach closures is inflated. Rather than causing losses of about $1.8 million, beach closures only did $213,370 of economic harm, one consultant said. Visitors naturally stay clear of the beach during winter storms, the documents state.
Dickerson countered Thursday that the water quality board has the discretion to impose fines of up to $10 for every gallon spilled, without even considering beach closures.
“We applied many mitigating factors that brought that down to something like .025%" of the possible $860 million, he said. “It’s a very small fraction of the maximum penalty possible. We applied a very substantial discount that benefited the city. For them to suggest we are imposing costs that are unreasonable is wholly without foundation.”
Zeanah Fears She’s Being Made Scapegoat
Perhaps the most divisive items found in the city’s documents are contained in a nine-page written statement from Councilwoman Judy Lazar, who will appear as a defense witness for the city at the hearing, sources say.
Lazar’s written testimony states that the City Council majority was always willing to upgrade the sewer system, but could not muster the required four-fifths vote to raise user fees.
This tactic infuriated Councilwoman Zeanah, who was a consistent no vote during the two-year stalemate. She said this particular defense argument makes her a scapegoat, even though the sewer upgrade had been planned years earlier.
Discussing the long sewer skirmish is always a dicey issue. The pipeline replacement was part of a $75-million plan to upgrade the city’s sewer plant.
Zeanah--along with Zukowski and later with current Councilwoman Linda Parks-- argued that the upgrade was too lavish and resident fees should not be hiked to cover it.
So they voted against fee hikes for two years, supporting less expensive plans instead. But Zeanah, Parks and Zukowski did make attempts to replace the imperiled pipeline separate from the $75-million upgrade.
Zeanah said Thursday that the city’s lawyers had betrayed her.
She vowed to attend the Monday hearing, against the lawyers’ advice. Also scheduled to appear on the city’s behalf are Lazar, Public Works Director Don Nelson, a handful of paid consultants and members of Bonner’s legal team.
Bonner said earlier in the day that the information was not meant to place blame.
“We’re not criticizing any council member,” he said. “This was a debatable issue for the council. It did involve an increase in user fees. But in fairness to the city, a majority of the City Council was willing in November 1995. And, at all times, they voted for the [fee] increase.”