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Beaching the Cleanup Plan

Photos by Slobodan Dimitrov

An oil pump rocks under a gray sky in front of Curley’s Café in Signal Hill. Inside, City Councilman Larry Forester, a talkative 56-year-old, discusses real estate and greets constituents.

Forester says he is proud to have earned the respect of the crowd at Curley’s by promoting economic development in this city founded by oil men in 1924. “I’m in the most redneck place in town and I’m openly gay,” he brags.

Over lunch, Forester explains how he started a pro-development coalition called Concerned Citizens of Signal Hill after slow-growth forces took over the city in 1990. “Today, four out of five of us are founding members of Concerned Citizens and have turned an anti-development town into a pro-development city,” he says.

Lately, Forester, a council member since 1998, has a new crusade. The former marine engineer, who once worked for Exxon, is challenging rules aimed at cleaning up storm water and other runoff before it reaches the ocean. He claims the rules are too expensive, unlikely to work and could expose cities to potentially unlimited liabilities. Forester has helped bring together some 46 cities under the banner of the Coalition for Practical Regulation to fight the rules in court. Through mid-2002, the group had spent more than $538,000, almost all collected from small cities, to pay for its legal campaign, with most of the money, some $380,000, going to the Orange County law firm of Rutan & Tucker. The group, which charges cities $10,000 a year for basic membership, billed in two $5,000 installments, is expected to take in at least another $400,000 in the fiscal year ending June 30.

From Sierra Madre to Lawndale, city officials appear to be acting out of fear and responding to a misleading campaign contending that the cost of meeting the new requirements would be astronomical, a claim that so far has proved unfounded. In a series of press releases, communications to cities, and on its Web site, the coalition has said that to pay for the cleanup, cities will have to drastically cut police and fire protection or institute massive hikes in fees and taxes.

In an ironic twist, however, if the group succeeds in overturning water-pollution-control requirements for developers, the public most likely will end up paying the bills.

The coalition and law firm have rushed cities to join legal challenges, often obtaining authorizations from city managers ahead of consideration by city councils. Moreover, council members have approved support for the coalition’s activities on the basis of memos filtered through city staff and were not fully briefed by the law firm on the details of the various legal challenges they are financing with public money.

At issue are rules the Los Angeles Regional Water Quality Control Board adopted over the past four years that call on cities and businesses to prevent contamination in runoff from rainstorms, sprinklers and wash-off. Pollutants carried by runoff to the ocean cause illness among swimmers and threaten marine life. In 2001, Los Angeles County experienced 1,046 beach closures and advisories against swimming due to bacterial contamination.

Forester calls rolling back the rules his number-two priority. “I’ve never been against clean water,” he explains. “The question is to what extent and at what cost.” His number-one goal is raising money for AIDS organizations. “I’m living with full-blown AIDS,” says the Signal Hill politician, who orders a second iced tea and takes several capsules he drops from a pouch onto the table.

 

Water-board officials and clean-water advocates point out that pollution of Southern California’s shores now stems primarily from storm drains, creeks and rivers that carry urban runoff and storm water full of trash and pollutants from the sprawling Los Angeles area. “If you look at sewage-treatment plants,” according to Mark Gold, executive director of Heal the Bay in Santa Monica, “the improvement has been dramatic.” However, added Gold, who has worked as a scientist and clean-water advocate for 15 years, “When it comes to storm water, we haven’t done a damn thing.”

Congress identified storm water as a major source of water pollution when it re-authorized the federal Clean Water Act in 1987. In Los Angeles County, the water board issued its first storm-water-pollution control permit in 1990. “It was really let’s join hands and sing ‘Kumbaya,’” said Gold.

Since then the board has tightened requirements for new development projects in 2000 and for Los Angeles County and its cities in 2001. New development projects must include filters and areas that retain rainwater so it soaks into the ground rather than running off. Municipalities for the first time face lawsuits and legal penalties if water-quality standards are not met, a provision Forester says opens them to unlimited liability. Among other measures, cities must inspect local businesses for good housekeeping practices and clean their streets and storm-sewer catch basins regularly, according to Xavier Swamikannu, a regional-board engineer.

The rules also require cities and the county to divert runoff from wash-off and sprinklers from storm drains to sewage plants so it can be treated to remove bacteria and other contaminants before it is discharged to the ocean.

Under a 1999 consent decree, the board is adopting a series of standards to set limits on pollution in rivers and at beaches. So far, the board has issued standards limiting trash and bacteria to be phased in over 13 years and 10 years, respectively. Under the consent decree, the board is expected to adopt numerical standards for additional pollutants, including dozens of chemicals, over the next nine years. These limits must support the uses of the waters outlined in the board’s basin plan. For instance, some waters are designated for swimming and others for uses that allow more pollution.


Ocean blues: Prepare for
more garbage in the bay if
forester gets his way.

Forester’s coalition contends that the ultimate cost of meeting these standards will reach $54 billion or more because municipalities will have to build a series of storm-water treatment plants that use an expensive technology called reverse osmosis.

However, the water board envisions that the standards can be met largely without such expensive, centralized treatment plants by preventing or cleaning up pollution at its source — such as in new developments — before storm water becomes more polluted as it moves downstream to the ocean. Indeed, storm water, which equals about half the water the region imports, according to regional-board chairwoman Susan Cloke, eventually could become a major source of water for Southern California as the spigot from the Colorado River and Northern California is turned down. To encourage cities to view storm water as a valuable resource, the regional board has given cities that opt to meet the new bacteria limits by using it for irrigation, drinking water and creating recreational areas up to 18 years to comply, instead of 10 years for those that opt merely to clean up pollutants in runoff before it flows to the ocean.

 

The rules are largely designed to protect swimmers from a variety of illnesses, including gastrointestinal infections, colds, skin rashes, and eye and ear infections. A 1996 epidemiological study showed that one person in 25 swimming near a storm drain along Santa Monica Bay gets sick in the summer. “In wet weather, that number will probably be higher,” said Renee DeShazo, a staff scientist with the water board. While nobody knows how many people swim at Southern California’s shore, DeShazo said that 55 million people visit the beach annually along Santa Monica Bay, including 7.5 million during winter.

“These are extremely important public-health and public-policy issues,” said Dr. Stanley Shapiro, an infectious-disease specialist in Panorama City. Bacteria and viruses in the surf not only cause minor infections, he said, but can cause more-serious health problems. “Coxsackie B virus can damage your heart,” according to Shapiro.

Ken Seino is one of the unlucky. In the morning fog, the 47-year-old Asian-American enters the Cow’s End Café near the Venice Beach pier. Seino looks vigorous, yet remains alive only by virtue of a pacemaker that keeps his heart beating regularly after it was damaged by a viral infection he believes he contracted in 1997 while riding the waves in Malibu.

“I got sick as a dog after surfing,” said Seino. Within a few weeks the flulike illness had passed, but three months later he felt lightheaded on a surfing trip to Ensenada. After later dining with friends, Seino collapsed face-down in the street. “I stepped up onto the curb, and that’s the last thing I remember,” he said. “I woke up looking at people’s feet.”

Paramedics found that Seino’s blood pressure was sky-high, so they took him to a clinic. Eventually, Seino stabilized and his friends tried to take him home to Los Angeles. By the time they reached Oceanside, however, he felt faint again, so they took him to a hospital there.

In the emergency room, an electrocardiogram showed he was suffering from a highly erratic heartbeat. The attending physician said he would need a pacemaker installed to survive. After an agonizing night of being shocked by a defibrillator each time his heart missed beats, Seino underwent surgery. “I said, Please, please. I don’t want to live like this.” Slightly pulling open the collar of his polo shirt, he revealed a 3-inch scar on the left side of his upper chest where his pacemaker is implanted.

“I got really angry because this sport, which I love, is supposed to be healthy and vital and suddenly was the reason my life was in jeopardy,” said Seino, who resumed surfing two years later.

Especially at risk of infection from polluted waters are swimmers with compromised immune systems, according to Dr. Gina Solomon, an assistant professor of occupational and environmental medicine at the University of California at San Francisco Medical School. Los Angeles County has hundreds of thousands of people with compromised immune systems, including some 300,000 with diabetes, 9,000 with AIDS, and an untold number under cancer treatment or suffering from other immune disorders, according to data from the Centers for Disease Control and Prevention. Better medical therapies have made it possible for many of them to lead active lives that include swimming, the doctors note.

 

The biggest beneficiaries of the lawsuits aimed at undoing the water-pollution rules could be land developers. “There is an unholy alliance between the Building Industry Association and a small group of city officials,” said David Beckman, an attorney with the Los Angeles office of the Natural Resources Defense Council.

Financial records obtained from Signal Hill, which administers the Coalition for Practical Regulation, show that the Building Industry Association of Southern California is the sole industry group that has financially supported it. A May 10, 2000, memo to coalition members from Signal Hill City Manager Ken Farfsing outlined a plan to spend $70,000 to appeal the storm-water rules for new homes, shopping centers, office parks and other projects to the State Water Resources Control Board. “The Building Industry Association has agreed to pay for one-third of the petition costs and to provide technical support. The cities would fund the remaining two-thirds of the costs,” wrote Farfsing. Those records show that the Building Industry Association made the first contribution to the coalition for $5,000 on May 2, 2000, and over the ensuing 11 months contributed a total of $29,682. Thirty small cities contributed $60,000 during the period. The money was run through the city of Signal Hill, which paid out $97,297 in an effort to overturn the development requirements before the state board.

That appeal eliminated some minor requirements, but ultimately left the plan intact, according to Richard Montevideo, an attorney with the law firm of Rutan & Tucker, who represents the group.

The group is pressing the issue in a lawsuit challenging the regional board’s 2001 storm-water permit in Los Angeles Superior Court. Montevideo explained, “Part of our lawsuit seeks to have the standard urban storm-water-mitigation plan declared invalid.”

The coalition’s suit challenges other requirements — including the duty of the cities to inspect businesses and to face enforcement action when water-quality standards are not met. However, development politics may be at the heart of the case.

“When you talk about standard urban storm-water practices, many people believe the environmental groups are pushing a no-growth agenda,” said Montevideo. NRDC’s Beckman counters that the development standards are actually intended to accommodate growth.

The coalition’s primary goal is to overturn the standards. If that fails, however, it would settle for allowing storm water to be cleaned at regional facilities rather than at individual developments, according to Montevideo. Developers would help pay for such regional facilities, though cities would have to operate them on an ongoing basis at public expense.

The coalition also filed a suit in a federal district court to overturn an earlier trash standard set by the federal Environmental Protection Agency that required cities to clean trash off streets and out of storm drains to prevent it from being carried to the beach by storm-water runoff. District Judge Saundra Brown Armstrong dismissed that suit on May 16, calling the group’s claims “moot, meritless or unripe.” Undeterred, the group is pressing ahead in Los Angeles Superior Court to challenge the regional board’s trash standard, according to Montevideo.

“The problem,” observes Los Angeles attorney David Nahai, who sits on the regional board, “is that their legal expenses are mounting and they’re losing.” The builders lost a suit in state court earlier this year challenging similar development standards included in the storm-water permit for San Diego. ‰

 

Ironically, the city councils supporting the coalition may not be fully aware of the group’s aims and activities. A series of letters to Montevideo shows that in a rush to meet a legal filing deadline, many city managers authorized participation in the permit appeal before consideration by their elected councils. Moreover, the records show that the coalition actually considered billing cities for a University of Southern California study on the costs of the storm-water rules before those cities had authorized their participation in the project. “I think we should invoice the coalition cities NOW for the USC study,” wrote coalition activist Gerald Caton, city manager of Downey, in a December 14, 2001, e-mail to Farfsing. “You will be surprise [sic] how many cities automatically pay invoices. I would bill each city, [sic] $3,500.”

Caton could not be reached for comment on the e-mail. Farfsing said that at a meeting of the coalition — which was held behind closed doors on the basis of a legal opinion that the group is not subject to the open-meeting rules of the Brown Act — 18 cities agreed to fund the study. Farfsing said he garnered additional participation to raise the requisite $100,000 before sending invoices to the cities for the study.

Meetings of the group are attended by “a mixture” of city representatives, including council members, public-works directors and city managers, according to Farfsing, who said that he sends out regular memos to keep those in the coalition apprised of the group’s activities. “If they read it or don’t read it, I can’t account for that.”

Montevideo said that while he was “uncomfortable with discussing the communications process” between his law firm and the cities in the coalition, “on the lawsuit issue, that is something we felt needed to go to the council[s]. In some cases, some of the councils may have ratified it afterwards.”

South Pasadena — which joined the coalition in 2001 — appears to be among the cities that have paid scant attention, at least at high levels, to the details of the coalition’s efforts. In a brief February 20, 2002, memo, former public works director James R. Van Winkle wrote to the City Council: “The Coalition has submitted invoices to the City in the amount of $5,000 for annual membership dues and $5,000 as South Pasadena’s share of the legal expenses associated with the appeal process. Neither of these actions were anticipated by staff during the development of the current budget.” The council approved the invoices, though one of the two members present during 2001 who remains on the council today could not recall why the city had joined the coalition. “Without having to bone up on it, I couldn’t speak on it intelligently,” said Council Member David Saeta. “I supported the city’s position.”

South Pasadena City Manager Sean Joyce said the cities joining the coalition were concerned about the complexity of the storm-water standards and their potential expense. “Most of the cities have allowed the coalition to take the lead and deferred to their judgment,” said Joyce. However, he said that South Pasadena will be “revisiting” its participation in light of its budget and the recent federal-court decision on the coalition’s lawsuit against the trash standard. “The decision was enlightening,” Joyce said.

Montevideo said he was not surprised that all of the City Council members were not “up to speed” on the coalition’s activities and the details of the litigation. “It’s not their responsibility to understand all the issues,” the attorney said. “I don’t brief cities on the causes of action on this or any other lawsuit. They leave the contentions to me.”

With lawsuits in motion, coalition cities could face untold additional invoices for legal fees. NRDC’s Beckman, who estimates that the coalition already has spent some $1 million collected from small cities, says it could spend “millions” before the litigation is concluded.

Sierra Madre is another coalition city. This upscale villagelike community, where the average household income is $66,000 a year, is nestled in the canyons along the base of the San Gabriel Mountains. Here, pristine mountain streams begin their course to the ocean through the Los Angeles metropolis. Bruce Inman, director of public works, says that the city is spending $250,000 to comply with the storm-water rules. While he expects that cost to increase in the future, so far it amounts to $22 a year per household.

Forester maintains that the coalition’s campaign is simply aimed at restoring balance to the board’s water-pollution-control policy, which he says has gone too far. “We’re all interested in cleaning up this entire basin,” he says. Yet he notes, “We are living our good lifestyle because of the industrial revolution.”

Following lunch he emerges from the dimly lit café in Signal Hill and departs in his cream-colored Mercedes along streets lined with big-box retail plazas, a sign of the pro-development city-council coalition’s success and the type of development that the regional water board now says must install storm-water-pollution control filters.

In Venice, meanwhile, Seino, who lacks health insurance, worries about how he will afford overdue surgery to replace his pacemaker battery, and at the law offices of Rutan & Tucker, the meter ticks.