ELR Citation: ELR 21223
No(s). 88-1101-B (IEG) (S.D. Cal. Mar 28, 1991)

The court holds that San Diego has been in almost continuous violation of the Federal Water Pollution Control Act (FWPCA) since that law was enacted in 1972, and imposes a civil penalty of $3 million against the city. The court first refuses to defer consideration of the proposed consent decree to allow the city to apply for an FWPCA §301(h) waiver. The court holds that the city and an intervenor have failed to prove by a preponderance of the evidence that the outfall from the waste treatment plant is not damaging the water quality and attendant kelp beds. Further, evidence shows elevated levels of disease-carrying bacteria drifting toward the shore from the outfall, which create a health risk to scuba divers and recreational water users.

The court next imposes a $3 million civil penalty against the city, pursuant to FWPCA §309(d), even though the maximum statutory FWPCA penalty for the violations exceeds $229 million and the plaintiffs requested a $10 million penalty. The court finds that the city has commited violations of substantial seriousness and that the city benefitted by $300 million over the period of violations from foregoing capital improvements. The evidence shows that the violations resulted from three deficiencies in the city's sewage treatment efforts, including insufficient control of pretreatment of sewage by industrial users, frequent sewage spills in the collection system, and the absence of secondary treatment at a city wastewater treatment plant. However, the court also finds that the city's failure to comply with federal and state regulatory mandates is at least partially mitigated by the conflicting regulatory messages sent to the city by the Environmental Protection Agency and California.

In using its equitable discretion, the court balances the policy goals of retribution and deterrence against the need to provide incentives to the city to engage in prudent planning for the future. Of the $3 million civil penalty, $500,000 is payable to the United States Treasury on entry of judgment, and the remaining $2.5 million is payable to the Treasury on January 1, 1992, unless the city, at its option, enacts the court's suggested credit project. Pursuant to FWPCA §§251(b) and 309(d), the court finds that it is permitted to consider permanent water conservation projects as a form of penalty. Under the court's order, the optional project must be enacted on or before January 1, 1992, and include requirements for the installation of water efficient toilets, shower heads, and faucets in all new construction and remodeling of bathrooms. In addition, sellers of property must retrofit all bathrooms and kitchens with such devices before selling, and the city must offer rebates to residences that voluntarily retrofit with such devices. Upon funding by the city of this program for five years, the penalty ordered will be considered satisfied.

Counsel for Plaintiffs
Gerald F. George, Karen S. Dworkin
Environmental Enforcement Section, U.S. Department of Justice
P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 514-2000

David Eissler, Deputy Attorney General
3580 Wilshire Blvd., Los Angeles CA 90010
(213) 736-2304

Counsel for Defendant
Ted Bromfield
Office of the City Attorney
202 C St., Third Fl., San Diego CA 92101
(619) 236-6220