Downey Brand attorney Melissa A. Thorme is representing South SLO County Sanitation District in a case brought by prosecutors from the State Water Resources Control Board concerning a major sewage spill from the Oceano treatment plant in December 2010. Melissa's legal brief for the case is quoted in this article by the New Times.
See full article below or view it online at the New Times.
By Kathy Johnston for the New Times
Raw sewage pouring into the underground pump room at the South County sewage plant was already four feet deep and rising—but plant operator Jeff Appleton waded into the murky effluent to try to wrestle open a crucial discharge valve during a plant emergency two winters ago.
In dramatic testimony at a lengthy hearing Sept. 7, Appleton described the harrowing series of events that led to a major sewage spill from the Oceano treatment plant in December 2010, when hundreds of gallons of raw sewage flowed up into bathtubs and toilets at nearby homes, and into a creek, a lagoon, and the ocean.
A surprise witness called by prosecutors from the Office of Enforcement at the State Water Resources Control Board, Appleton had been subpoenaed at the last minute to testify at the hearing before members of the Central Coast Regional Water Quality Control Board.
As he described each problem the sewage plant faced on that rainy Sunday—an electrical failure due to old and inadequate wiring, a faulty backup pump, leaking influent gates, improper grading that had created ponding on top of an electrical box, a closed discharge valve—he repeatedly said he had previously warned John Wallace, district administrator for the South SLO County Sanitation District, about the need to address the various issues.
Wallace had told him, Appleton said, that the company he owns—the Wallace Group, the district’s engineering consultant—was looking into the problems from an engineering standpoint.
Ironically, Appleton—now on unpaid administrative leave, after 20 years of employment with the district—had himself been named in a 2010 letter of reprimand from the state Office of Enforcement over allegedly falsified records.
State prosecutors contend that the sanitation district should pay a penalty of $1.3 million, saying the spill was caused by the district’s failure to properly maintain and operate the plant. The district’s Sacramento-based attorneys argued in response that the spill was caused by “a series of unfortunate events” during a flood, not a lack of maintenance.
Members of the regional water board sat from early morning till midnight, charged with deciding on a penalty amount after hearing detailed evidence from witnesses on both sides. But board members were too exhausted to deliberate once all the testimony was complete. As the clock approached 1 a.m., they decided to meet again to make their decision in a closed session on Oct. 3.
“We had to pull the plug. We couldn’t give it full consideration that late at night,” the regional board’s interim executive officer, Ken Harris, said in a phone interview as he drove home to Sacramento, still “a little red-eyed,” the next morning.
The state Office of Enforcement was already investigating the South SLO County Sanitation District even before the 2010 sewage spill, after former employee whistleblowers reported being pressured to alter lab sampling data. Some local residents have also been questioning Wallace’s arrangement with the district, calling for an independent investigation into potential “malfeasance” with the Wallace Group.
The 1960s-era treatment plant next to the Oceano Airport treats the sewage generated by around 38,000 people in Arroyo Grande, Grover Beach, and Oceano, before discharging it into the ocean. Each town has a member on the board of directors.
The district’s attorney for the case, Melissa Thorme of Downey Brand in Sacramento, said in her legal brief that the spill had nothing to do with a failure to properly maintain, operate, and manage the sewage system. She argued that the district “went to great lengths” to stop the spill.
Attorney Julie Macedo of the state’s prosecution team asked regional water board members at the hearing to impose what she called “a significant penalty,” adding, “Many other dischargers with similar delayed maintenance issues are watching this case. We hope to send a message that it’s better to deal with these issues than it is to hope they don’t lead to a spill and far-reaching public health problems.”
Macedo cited the “gravity” of the spill, the harm incurred by the public, and “the failure of the district to recognize its contribution to the spill by years of delayed maintenance.”
The prosecution team alleged in a legal brief, “The overflow was caused and exacerbated by the district’s delayed preventive maintenance and repair, incorrect standard operating procedures in place, and failed risk assessment and mitigation issues, which were brought to the attention of the district in advance of the overflow and left unresolved.”
A photo submitted as evidence at the hearing showed an Oceano resident’s bathroom, the bathtub brimming with brownish-green raw sewage that had backed up through the drain. The overflow resulted in “the largest public health exposure to raw sewage entering private residences” in California, at least 11 homes, according to state prosecutors.
“Some residents reported being sick with the flu for days following the sewer overflow. …The neighbors dubbed it the ‘flood flu,’” a state legal brief stated.
The sanitation district argued that residents should have installed backflow prevention devices.
Oceano resident Steve Ehens, who testified that his home had filled with raw sewage from the bathtub, the toilet, and an overflowing manhole outside, said in a later interview, “A backflow prevention device wouldn’t have helped when raw sewage is coming through your front door. I got sick, my son got sick, all the neighbors got sick, with vomiting and diarrhea that lasted all week.”
Much of the testimony at the hearing concerned varying estimates of the amount of raw sewage involved in the spill, crucial for determining the penalty. Expert witnesses on both sides calculated vastly different volumes.
The sanitation district’s ability to pay a fine without raising sewer rates was another important issue. Economist Gerald Horner, called to the stand by state prosecutors, said a comprehensive annual financial report for the district showed “a substantial amount” of cash.
“With this amount of cash sitting on the books, there’s no way you should have to raise rates,” Horner said.
The prosecution team’s legal brief states, “To the extent that there have been improprieties in the way that the Wallace Group has overseen its obligations at the district that caused or contributed to the spill, perhaps the penalty should not be passed on to the ratepayers.”
In reply, the sanitation district’s brief states, “These arguments must be ignored as not only unsupported, but also unduly prejudicial, and demonstrating bias by the prosecution team.”
Wallace declined to be interviewed, but after the hearing, the sanitation district’s local attorney, Mike Seitz, said the district can’t afford a million-dollar-plus fine without seeking a Proposition 218 vote to raise rates.
Seitz also said the sanitation district will appeal any decision they disagree with, and will not have to pay any fine until the case is finally resolved.
“We are just going to carry the battle forward,” Seitz said.