Extended Holiday for Pollution Violators
Dear River Watchers,
With the re-election of Bush in 2004, River Watch and all its members will face another four year battle against Bush administration policies to hold violators of Clean Water laws accountable.
According to a report released in October 2004 by the Environmental Integrity Project (EIP), a nonpartisan organization that advocates for more effective enforcement of environmental laws, civil lawsuits by the Environmental Protection Agency (EPA) are down 75% over the last three years with the current Bush Administration. For the first time, EPA’s annual report excluded the number of judicial cases actually settled. Eric Schaeffer, EIP project director and former head of EPA’s Office of Regulatory Enforcement comments, “And no wonder, the agency’s online data base shows that the Justice Department was able to conclude fewer than 160 enforcement actions in 2004, the lowest by far in the 10 years such data has been tracked.” Schaeffer also says that Justice averaged more than 230 settlements during each of the last six years of the Clinton administration. Schaeffer observers that “major polluters are now enjoying an extended holiday under the current management of the EPA, because the agency is much more reluctant to take polluters to court when they refuse to clean up or comply with environmental laws.”
Meanwhile, EPA’s Office of Enforcement and Compliance Assurance reports that a quarter of the nation’s largest industrial plants and water treatment facilities are in serious violation of pollution standards at any one time, yet only a fraction of them face formal enforcement actions. EPA suggests that more than half of stormwater runoff discharges do not comply with simple best management practices (BMPs) and most states do not even bother tracking compliance. Recent reports by the Natural Resources Defense Council (NRDC) and the Center for Progressive Regulation document that only 23% of wastewater standards are enforced in California. Experts from EIP, Earth Justice and NRDC say that it will be up to the state and citizens to stop pollution when EPA fails to act. Citizen action groups like River Watch are up for the challenge.
In 2004, River Watch was successfully in stopping Rep. Mike Thompson’s attempts to curtail citizen action suits. Thompson suggested that citizens should not be able to bring suits regardless of diligence or effectiveness of governmental enforcement. After an extensive letter/e-mail writing campaign as well as articles in the North Bay Progressive, InsideEPA and other publications, Congressman Thompson’s office has stated he does not intend to submit any legislation seeking changes in the Clean Water Act. Thank you to all who participated in our letter writing campaign!
You can contribute to our Healthy Waters Program by reporting ground and surface water pollution to our River Watch office. We are also accepting donations which go to support our many programs.
For 2005, let’s keep in mind a quote from Teddy Roosevelt, “No man is above the law . . . compliance with the law is demanded as a right, not asked as a favor.”
Litigation Report 2004
River Watch’s aggressive program to pursue compliance is having a substantial effect in the North Coast Region. The ripples of our actions have reached all the way to Washington, D.C. where dischargers have lobbied their representatives to change the laws (see Rep. Mike Thompson response letters on the River Watch website). The more effective we are the more criticism we engender. Litigation is controversial but productive. It is our policy to avoid litigation whenever possible, but without the will to follow through our “threat” with appropriate action, no one would take us seriously.
In a true atmosphere seeking compliance through co-operation vs. litigation River Watch has been seeking tolling agreements with every polluter to whom a Notice Letter is sent. The tolling agreement offers an agreement to not file suit for a certain period of time in exchange for the polluter’s agreement to cooperate with our investigation. River Watch also agrees to share the findings of its investigation with the polluter and seek a non-litigious solution. The hope is to reduce hostilities and costs, as well as promote more cooperation rather than forcing polluters through the use of the courts.
Successes in 2004
Municipal Sewage Systems
City of Healdsburg
In January of 2004, after a full bench trial, River Watch prevailed against the City of Healdsburg in its suit to save Basalt Pond from further degradation due to Healdsburg’s unregulated discharges. The issue in this case goes to the heart of the Clean Water Act – protecting to the fullest extent possible waters of the United States against unregulated discharges. For decades the City of Healdsburg has dumped its treated sewage into Basalt Pond, a large abandoned gravel mining pit which has been reclaimed by nature and lies directly adjacent to the Russian River. The issue in this case was whether Basalt Pond and/or its wetlands fell within the navigable waters of the United States such that a National Pollution Discharge Elimination System (NPDES) permit was required. The court found that the Pond and wetlands were “waters of the United States” within the meaning of the Clean Water Act.
The court reasoned that the Pond, the River, and the wetlands all shared the same ecosystem. The wetlands in question helped filter pollutants entering the aquifer and hence the River proper. In every way the Pond and wetlands were “adjacent to” the Russian River. The court’s decision can be found on the River Watch web site. Healdsburg has appealed and we expect the appeal to be heard sometime this year. River Watch joined forces with the Western Environmental Law Center for the appeal. In addition to the gravel mining industry, this case has the coal, paper mill and sanitary treatment industries madly lobbying Washington D.C. and Sacramento to eliminate a citizen’s rights to bring such actions.
City of Eureka
After numerous starts and stops including seeking to coordinate enforcement efforts with EPIC and appeals from staff at the Regional Water Quality Control Board (RWQCB) River Watch agreed to temporally resolve its claims against Eureka and allow the RWQCB to seek enforcement of claims raised by River Watch. In exchange Eureka agreed to fund a first flush study of Humboldt Bay. The study was conducted this year and yielded valuable information concerning non-point pollution.
UNDER GROUND TANK POLLUTION
River Watch followed a series of gas station owners to track down the responsible parties and to get these gasoline station sites cleaned up. All these stations started as Mobile which were bought by BP than Tosco who is now owned by Philips. These facilities have caused petroleum contamination of soil and groundwater which presents an imminent and substantial endangerment to human health and the environment. River Watch was able to successfully resolve these cases requiring the owners and operators to remediate and clean up the sites as well as conduct studies to eliminate the change of future pollution.
Occhipinti operates a retail gasoline and diesel station in Santa Rosa. The RWQCB served Occhipinti with a Cleanup and Abatement Order. Occhipinti failed to respond to any of our offers of a tolling agreement, therefore we are in active litigation. Although River Watch settled with Walter Properties, Inc., the property owner, William Occhipinti the business operator on the site, has been non-responsive and allowed a default to be filed against him. We are waiting for him to begin remediation of his site. We have asked the court to mandate clean up and remediation of the site.
Humboldt Petroleum Inc. (HPI) owns and operates between 20-30 gasoline stations in Northern California. Most have leaking tanks, most have had little or no remediation for more than a decade. River Watch previously sued HPI but was preempted by the local district attorney under Proposition 65, who in turn struck a sweetheart deal with HPI. Two years later no significant work has been conducted at any of these sites. (as a side note our case was dismissed by Judge Vaughan Walker 1st cousin of George Walker Bush). We re-filed suit in 2004 alleging new discharges and lack of progress on cleaning up the sites. The case was dismissed again on the basis that the prior state case preempted the new federal case. We have appealed this decision and have asked the court of appeals to allow us to proceed on the merits of this case. We expect the appeal will be decided sometime this year.
We continue to look into and have filed suits against specific gravel mining operations. Gravel mining is a highly destructive practice which destroys habitat for endangered salmonids and other aquatic life, increases sediment further degrading habitat, and destroys the natural ability of a river to filter itself. Our approach will be to bring a Clean Water Act case against one of the gravel mining companies in hopes of establishing some precedence which can be used to stop these devastating practices.
Forest practices include the cutting of trees, building of roads, conversion of timber land to agriculture (such as grapes), spraying of herbicides, etc., all of which cause enormous amounts of pollution to be washed into creeks and streams. EPIC through Earth Justice has filed a suit against Pacific Lumber under the Clean Water Act to stop these practices. River Watch is looking for similar conduct in order to pursue similar claims.
Aquatic pesticide and herbicide use
Recent 9th Circuit law has made the spraying of pesticides or herbicides either directly or indirectly into surface waters illegal without a NPDES permit. We intend to bring actions against the dischargers for indiscriminate pesticide spraying and certain municipalities or counties for the use of herbicides to clear vegetation from surface waters.
River Watch will continue to pursue sewage treatment plants as well as ground water contamination due to leaking underground storage tanks. With regard to sewage treatment plants the focus is on the endangerment to surface waters due to leaking collection systems. With regard to underground storage tanks, the major concern is contamination of surface and ground water.
River Watch works by the diligence of its members and others concerned about public health and protection of the environment. However, to continue to do this work we need your support. For an annual membership fee you will receive our newsletter, plus special mailings about upcoming events and workshops sponsored by River Watch. River Watch is a 501(c)(3) nonprofit organization. Your tax-deductible contribution will help fund investigations, the Healthy Waters Project, defining best practices for avoiding and mitigating pollution and other costs associated with River Watch’s environmental citizen enforcement actions. Members may also contact River Watch with complaints of water pollution in their area. River Watch investigates complaints and works with the business or public agency to mitigate the problem.
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“If we are saying that the loss of species in and of itself is inherently bad – I don’t think we know enough about how the world works to say that.”
-Interior Department Assistant Secretary Craig Manson, appointed by President Bush to position overseeing the Endangered Species Act, Los Angeles Times, Nov. 12, 2003
“First they ignore you.
Then they laugh at you.
Then they fight you.
Then you win.”
“Natural gas is hemispheric. I like to call it hemispheric in nature because it is a product that we can find in our neighborhoods.”
-President Bush, Austin, Texas, Dec. 20, 2000
“We need an energy bill that encourages consumption.”
-President Bush, Sept. 23, 2002, Trenton, New Jersey, speech
River Watch has been successful in mitigating water pollution caused by numerous industries, including oil companies, lumber mills, gravel quarries, wine factories, and composting facilities. These cases dealt with preventing facilities from discharging pollutants to the tributaries of the Russian River and the Russian River, itself. Because of the action taken by River Watch, each case resulted in abatement, cleanup, and remediation.
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