Friday, April 14, 2006

The SewerWatch CDO Defense: Six Mirrors

Before one of the "Los Osos 45" -- the 45 randomly selected property owners in Los Osos that were issued a Cease and Desist Order by the Regional Water Quality Control Board earlier this year -- says a word in their defense at the April 28 meeting regarding this matter, the Regional Water Quality Control Board needs to answer a question:

How is the train wreck in Los Osos not the RWQCB's fault for allowing the initial CSD Board to waste two critical years on a project that the RWQCB knew wasn't going to work?

An analogy:

If Exxon had told the federal government at the time of the Valdez oil spill, that their plan to clean up the oil was to sprinkle fairy dust on it, and the government said, "That ain't gonna cut it," but then just sat back and watched -- for two years -- while Exxon sprinkled fairy dust on the oil, who would be more at fault when the shores of Prince William Sound became a barren wasteland because the fairy dust wasn't cleaning up the oil? At that point -- two years later -- who would be more responsible for the barren wasteland? Exxon, for the initial spill, or the federal government for allowing the spill to fester for two years?

I'm not an attorney, but I'll play one on my blog, I think there's a legal term for that situation... and I believe it has something to do with culpability.

So, who is more culpable for the current situation in Los Osos? The property owners in Los Osos, many of whom weren't even around when Briggs and company at the local Water Quality Board were sitting on the sidelines, watching, as the initial CSD Board sprinkled fairy dust on Los Osos' wastewater problem from January 1999 to late 2000, or the only agency that had the authority to bring the initial CSD Board back to reality and save two precious, critical years, but failed to do so?

I've got to go with the latter on that one.

Which, for me (and you if you chose the latter, too), makes all of this a very interesting situation: The agency that is in large part responsible for the mess in Los Osos, is penalizing the people of Los Osos for that mess. Wow.

If I was defending myself against one of those CDOs, I'd show up at that April 28th meeting with six copies of my open letter to Roger Briggs and six mirrors. Then I'd pass them out to each member of the board, and Briggs, and then I'd say, "I rest my case."

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8 Comments:

  • Perhaps you forget, Ron, that it is the residents of the LOCSD who have chosen the path of telling the RWQCB first that they will build a plant and then that they want additional continued delay over construction.

    Essentially the LOCSD residents have told the RWQCB to "go pound sand."

    Had a wiser CSD board been in charge, the CDOs would not have happened. The RWQCB would have seen evidence of progress toward a far-too-long-delayed WWTF.

    The CDOs are essentially the RWQCB's 2nd reaction to the LOCSD's choice to stop construction. (The ACL hearing and fines were the first.)

    When you add the costs ... $6M in fines, and additional $10k/day in fines ($2M so far) and pumping charges it would seem that the LOCSD and the RWQCB are in a pissing contest where the RWQCB will win because the law is on their side already. Was this smart? Was this wise? Could this have been predicted in advance? No, No and Yes are the answers.

    By Blogger Shark Inlet, at 4:08 PM, April 14, 2006  

  • Shark! What in the world are you talking about? The ACL's were in play BEFORE the new board was seated. The RWQCB had it out for them, email stings prove it. Rog had a draft on his desk before the polls had closed for even 24 hours.
    The new Board merely "Suspended" work! They went to work immediately on a salvage plan that would allow the pipes to continue to go in the ground and chose a new plant site over the next four months (January) they would have had a Measure B vote for us to chose a site, but NO, the meddling old Board and the meddling RWQCB staff were able to convince the SRF (and apparently you, too) that the new Board had "stopped" work, when they absolutely had not!
    The new Board compromised through, so called, “negotiations” and would still be building if the funds had remained available.
    The actions of the RWQCB and the former LOCSD board have sealed the fate of the sewer, more expensive and definitely NOT at Tri-W…no funding, no building, no sewer. Maybe that’s what they wanted all along? They stopped the County project (some of the same people) twice! Listing the snail was brilliant, making an unaffordable project more unaffordable…for ever more. But hey, the poor people still don’t have a sewer bill, they must be rolling in dough and happy to still “get” to live here in this all white community next to the most pristine (filled with crap from Los Osos) bay in the world.

    By Blogger blogwatchn, at 5:22 PM, April 14, 2006  

  • You say "suspend", I say "stop" ... it would seem to be a distinction without a difference at this point in time.

    I would ask you where in the SRF Loan contract it gives the LOCSD the right to suspend the work. If the contract does give the CSD the right to suspend it is pretty simple that the board has done nothing wrong in that regard and that the SWRCB has some answering to do for suspending payments (and the LOCSD as well for refusing to pay contractors for work they had already done). On the other hand, if the LOCSD doesn't have the right to suspend the work without prior approval of the SWRCB, essentially the LOCSD's action was to stop construction, however you would want to call it.

    As to your contention that the ACL action wasn't a reaction to the action to stop construction ... maybe you should read the ACL hearing transcripts or watch the hearings again. The RWQCB staff and board itself were very clear ... the action was taken because of LOCSD board actions to stop progress on the only solution available to our community at this time.

    If you are going to start to assign blame for some things that have caused our bills to go up you might want to start with more reecent events because they have been far more costly. Along those lines, your suggestion that Gordon wants Los Osos to only be for priviledged white people is simply silly when it has been the actions of others that has raised our bills the most.

    By Blogger Shark Inlet, at 10:27 PM, April 14, 2006  

  • Dear Inlet, If I'm not mistaken, the contract with all the contractors had in it a 90 day "no harm, no foul" "stand-down" delay in it, i.e. everything could stop for 90 days for no reason at all or for very good reasons without it being considered "stopping work." Those two things -- "delay" and "stopping work" are not interchangeable. What will have to be decided in court is just WHO stopped the second SRF check when the CSD called "stand down."

    At the ACL hearing, if I heard right, Darrin Polhemus at the SWB said HE stopped the check. The emails among him, the CSD, the SWB's lawyers etc. will be crucial as to the timing of it all. If, indeed, the second check was stopped while the CSD was in "stand down," then the State will have a lot of "splainin'" to do.

    By Blogger Churadogs, at 6:31 AM, April 15, 2006  

  • Sharkinlet is correct.

    The SRF contract clearly states that if work is to be stopped / suspended the CSD must notify the State PRIOR to the work being stopped / suspended. The CSD staff nor Board ever gave notification prior to the Board decision of October 3.

    As for the State having a lot of "splainin" to do, I sure they will and win in court while doing so. Staff sending emails back and forth is not a crime, nor was the content or intent of those emails.

    Now that Measure B is invalidated, it is the CSD that has a lot of "splainin" to do. Why did they stop / suspend the project without any input from the State, the contractors, from MWH, or from legal council? Why did the CSD not try to adjudicate Measure B after its passage instead of avoiding so by settling with CASE? The CSD Boards actions have financially harmed the community / property owners. To blame the old board is silly, for the damages caused are the result of STOPPING the project, not beginning it. If the project had continued, CDO's, fines, lawsuits, and the continuation of the Community's polluting the groundwater would not exist.
    At this point, the CSDF will have to look at Tri-W as a viable site. To not do so will tell the RWQCB that the CSD refuses to build there just because they “just don’t wanna”.

    Additionally, since the recall the District has not made any progress towards building a waste water project. Hiring Ripley (for $513,000) to render an OPINION about a possible solution is not progress. Implementing water-saving protocols is laudable (and actually part of the prior boards work), but not progress. Trying to implement a septic tank maintenance program (at taxpayer expense) is not progress nor necessary as the real solution is installing a sewer. Installing Piranha Systems at the fire station, the water yard and at Vista del Oro will not release the CSD from its responsibility to stop all discharging from those facilities, nor forgive their liabilities; and is a waste of taxpayer’s money.

    Sincerly, Inside the CSD

    By Blogger Inside the CSD, at 8:51 AM, April 15, 2006  

  • Ann, I read the contract, unlike the "contract guy" Dan. (Well, he might have read it ... misread it.) The contract specifies that the LOCSD is obliged to follow all SWRCB staff orders and to check first with SWRCB staff for approval of any action other than continued progress on the prior approved plan.

    Perhaps I am not a "contract guy" or a lawyer, but to argue that the provision that allows for delay due to archealogical artifacts during grading and digging would allow them to delay the construction by some years and to move the WWTF by miles as absolutely laughable.

    When the courts determine the LOCSD was in the wrong in every way will you then admit this board is making unwise decisions?

    By Blogger Shark Inlet, at 9:02 AM, April 15, 2006  

  • Ahhhh... letter-to-the-editor campaigns, unattributed claims, and deliberate confusion. Take a deep breath... can you smell it? Yep, no doubt about it... I've been smelling it for ten years now... the unmistakable stench of "behavior based marketing strategies."

    Must be campaign season in Los Osos.

    I'm not sure I can stomach another round of that "strategy." The quicker the Coastal Commission figures out my tight revocation argument, the better... c'mon, Steve, what are you waiting for?

    By Blogger Ron, at 9:46 AM, April 15, 2006  

  • "Unattributed claims"?

    Of course you mean the "claim" that Measure B would protect the community from RWQCB fines, from losing the SRF loan, and allow Los Osos to move the waste water treatment site without any reprocussions or costs?

    Or do you mean the "claim" that the RWQCB would never enforce CDO's or fine the communty?

    Or do you mean the "claim" that opponents of the old CSD had a plan and site ready to go?

    Maybe the "claim" that the MWH contract is invalid, even though the CSD has minutes of the August, 1999 meeting where the Board hired MWD, directed them to begin work immediately and directed legal council and Pavo Olgren to formalize and sign a contract?

    Maybe the "claim" that settling CSD lawsuits on Measure B and others would reduce the number of lawsuits against the District?

    Possibly you mean the "claim" that the CSD cannot conduct its' basic financial housekeeping functions (such as the monthly finanial statements) because of lack of staff?


    Sincerely, Inside the CSD

    By Blogger Inside the CSD, at 10:37 AM, April 15, 2006  

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