CLAWS Sends Notice of Intent to Sue in Federal Court Over the City of Lompoc’s 15 Year Water Pollution Problem

The Committees for Land, Air, Water and Species (CLAWS) today sent formal notice of its intent to file a federal Clean Water Act action against the City of Lompoc unless officials commit to fixing water pollution problems at the City’s Corporate Yard. “The City has known about serious water pollution problems, including heavy metals, at the Yard for a very long time. Compared to data from 2003, water pollution tests in 2017 show virtually no change in contaminant discharges to San Miguelito Creek, the Santa Ynez River and estuary, and ultimately the Pacific Ocean,” said Board President Michael Gibian. “CLAWS decided to take this taken action because the City appears unwilling to fix obvious problems on its own,” he lamented.

The Clean Water Act’s objectives are to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” To this end, the Act prohibits the Corporate Yard from discharging pollutants except in compliance with California’s Industrial Stormwater Permit.[1]  California’s permit is a flexible regulatory instrument that relies almost exclusively on self-implementation and self-regulation.  Facilities are not subject to legal enforcement for one, or even two years, of polluted discharges, so long as the operators are making genuine attempts to identify and fix problems.

“We were surprised to find that the City has been self-reporting major pollution problems to the State for at least the last 15 years.  The data tell a clear story,” said attorney Jesse Swanhuyser of Anacapa Law Group, Inc, “officials have not taken the problem seriously. We hope to work with the City to avoid spending taxpayer monies on litigation, and instead focus on getting the Yard ship-shape before rain falls next winter. The fixes in this situation are likely inexpensive and easy to implement.”

Successful implementation of the Act since its enactment has meant that the major source of water pollution is no longer industrial waste discharged directly to creeks, rivers, and oceans. Instead, every major rainfall sends millions of gallons of polluted storm water from industrial facilities into storm drains, local waterways, and ultimately to the Pacific Ocean. More than half of the total pollution entering U.S. waters each year comes from stormwater discharged from facilities like the Corporate Yard.

Contaminated stormwater not only threatens ecosystems that rely on San Miguelito Creek, Santa Ynez River/Estuary, and the Pacific Ocean, but also the health of communities that live near and/or use these vital local resources.

The State has identified these waters as serving myriad social and economic functions, including fishing (commercial and recreational), water supply (municipal and groundwater recharge), agricultural irrigation, and as habitat for various threatened (California Golden Beaver) and endangered (Southern Steelhead Trout) species. “The City should be an example of how to operate responsibly. Today, Lompoc is an example of what not to do,” concluded Gibian.  

Background:

Polluted storm water is a serious environmental and public health problem: Successful implementation of the Act since 1972 has meant that the major source of water pollution is no longer industrial waste discharged directly to creeks, rivers, estuaries and oceans (e.g. the infamous Cuyahoga River fire in Ohio).  Current threats to U.S. waterways are more diverse, often less obvious, and present a “death by a thousand cuts” scenario.  Among the most potent and identifiable sources of pollution today is contaminated stormwater from industrial facilities like cement plants, oil & gas facilities, dumps and transfer stations, etc.  With every major rainfall, millions of gallons of polluted storm water pours from industrial facilities into storm drains, local waterways, and ultimately the Pacific Ocean.  The consensus among agencies and specialists is that storm water pollution accounts for more than half of the total pollution entering surface waters each year.

THE CITY HAS IGNORED THIS PROBLEM FOR TOO LONG: The City’s pattern of disregarding its pollution problems extends at least as far back as 2003. The Regional Water Quality Control Board documented the City’s consistent pollution problem spanning the decade between 2003 and 2013. Since that time, the City’s pollution levels have remained virtually unchanged. In fact, in 2015 the City reported its second highest violation of standards set by U.S. EPA since 2003.  Furthermore, testing between 2003 and 2015 suggest the Yard’s discharges contain heavy metals (e.g. Al, Zn, etc.), and yet the City took no action, and instead avoided testing its stormwater for metals.

SOLUTIONS ARE SIMPLE AND INEXPENSIVE: Solutions to the City’s water pollution problem are likely to be simple and inexpensive. This means that the City’s 15-year problem is principally the result of inattentiveness, and is not caused by budgetary limitations or the complexity of solutions. In the vast majority of cases like this, experts recommend housekeeping, e.g. frequent and thorough sweeping, immediate spill cleanup, etc., as the principal fix. 

THE SANTA YNEZ RIVER NEEDS PROTECTION: The State has identified San Miguelito Creek and the Santa Ynez River and Estuary as serving many social and economic functions, including for fishing (commercial and recreational), as water supply (municipal uses and groundwater recharge), for agricultural irrigation, and as habitat for various threatened (California Golden Beaver) and endangered (Southern Steelhead Trout, tidewater goby) species.

THE ACT ENCOURAGES CITIZEN SUITS & SETTLEMENTS: In designing the Act, Congress acknowledged the federal government simply could not take enforcement action against the numerous violations likely to occur. In anticipating this challenge, Congress crafted Section 505, which encourages local enforcement by citizen plaintiffs. Citizen plaintiffs are “welcomed participants in the vindication of environmental interests.” Friends of the Earth v. Carey, 535 F.2d 165, 172 (2nd Cir. 1976).  Further, the Act’a penalty system was designed to incentivize settlement, rather than litigation. Violators are subject to a penalty of up to $51,570 per day per violation for violations occurring after November 2, 2015 (and up to $37,500 per day per violation for violations occurring prior to that date). Therefore, only the most intransigent (or wrongly charged) defendants insist on going to court.