State Rejects Thousand Oaks Appeal of Record Fine for Sewage Spill

State water quality officials have rejected the city’s appeal of a record $2.3-million fine stemming from a massive sewage spill nearly three years ago.

The failure of a sewer pipe in the Arroyo Conejo in February 1998 sent 86 million gallons of raw sewage coursing through the creek bed and into the ocean, closing 29 miles of public beach from Malibu to Oxnard for weeks.

Based on an opinion by the chief attorney for the State Water Resources Control Board, the board’s acting executive officer, Edward Anton, upheld the Los Angeles Regional Water Quality Board’s multimillion-dollar fine--the largest such penalty for a municipality in state history.

The winter sewage spill and circumstances leading to it are also the subject of an ongoing federal criminal investigation for possible violations of the 1972 Clean Water Act.

Jeffrey Dintzer, a Los Angeles attorney representing Thousand Oaks in both matters, said he will do whatever is necessary to “protect the city’s rights” in the water board case.

Although no decision has been made, the next legal step would be filing a petition in Ventura County Superior Court to overturn the fine, Thousand Oaks City Atty. Mark Sellers said.

“From a certain point of view, we’re not terribly concerned about [the state decision], because we always felt our best chance for success was in Superior Court,” Sellers said.

The city has already spent nearly $1 million in public money for attorneys and expert witnesses fighting the fine, city records show.

Despite the high legal fees, Sellers said it is important to fight what he believes is an excessive penalty because of the precedent it could set.

“We need to have some reasonable defenses to natural calamities, and not be subject to paying very large fines,” he said.

The reinforced concrete pipe, which is used to carry raw sewage to the city’s Hill Canyon Treatment Plant, was washed out during El Nino-fueled storms in late 1997 and early 1998 that dumped unprecedented amounts of rain in Ventura County and throughout California.

City officials have been negotiating the terms of the fine with regional board leaders since the penalty was levied against Thousand Oaks in August 1998. According to an Oct. 27, 2000, memorandum from the state board’s chief counsel to Anton, the matter was reactivated recently when it became clear there would be no “meeting of the minds.”

Sellers said the City Council is expected to discuss the matter at its Jan. 23 meeting. Even if the city files to have the ruling overturned, officials would continue to try to reach a settlement, he said.

“We have always felt this [pipe] break was caused by a natural disaster that the city could not predict,” Sellers said. “There should be some leeway when these ‘acts of God’ occur. We would like to resolve our differences with the regional board.”

Karen Ceasar, a regional board spokeswoman, said her agency’s policy is not to comment on a pending enforcement action.

According to the state memo, the agency would only overturn a penalty if it determined regional board members had abused their discretion.

That did not happen in the Thousand Oaks case, the memo states, because the city has clear liability for the broken pipe under state law. The amount of the penalty was fair, the memo stated, based on economic loss from beach closures and standard fines for raw sewage discharges.

“The regional board members were very sympathetic to the circumstances surrounding the spill, but it is equally clear that they did not believe the city had done what it could to prevent the problem,” the memo said.

In late 1995, city officials warned that the 30-inch-diameter sewer main needed to be replaced and urged the council to raise service fees to homeowners by $5.20 a month to pay for the work.

State law requires a four-fifths vote for such increases. But at least two council members consistently refused to support a rate hike, saying developers should pick up the entire tab.

The council in September 1997 authorized a $75-million waste water program that included an upgrade of the pipe and expansion of the Hill Canyon Treatment Plant, but the pipe replacement was not completed in time to prevent the washout.

Being stymied by that state voting provision when a majority of the council wanted to start work on the pipe sooner is one of the city’s legal arguments against the fine. Another is that there is no evidence there was permanent damage to the environment as a result of the spill, Sellers said.

“There were more pollutants in that water from other sources that were far more severe and damaging than anything the city did,” he said.