Last Friday, the Regional Water Board finally held the long overdue enforcement hearing on the chronic pollution problems at Paradise Cove. At stake was a $1.6 million fine. The Kissel Co., owner of the mobile home park at the cove, has been violating the Clean Water Act for over 15 years with numerous raw sewage spills and nearly complete disdain for a series of Regional Board compliance assurance actions. In addition, the beach at Paradise Cove consistently ranks as one of the most chronically polluted in the state of California, and often receives an “F” on our annual Beach Report Card.
The hearing started at 9 a.m. and went to midnight without a final conclusion. The marathon included compelling public comment from local Paradise Cove residents, including Kelly Meyer, Dr. Judy Villablanca, Lyndie Benson, Malibu Planning Commissioner Regan Schaar, councilmember Pamela Ulich, Dusty Peak, Nichole McGinley and others, including current and former mobile home park residents.
To a person, we expressed our outrage that these flagrant violations of the Clean Water Act and four separate Time Schedule Orders (timelines with enforceable milestones) occurred for years at the expense of public health at the idyllic beach.
After the public comment, the lawyers for the Kissel Co. and for the Regional Board made opening presentations. Shockingly, the defense approach by the polluter’s attorney was to blame everyone else for the problems. Resident sabotage of the sewer and septic system caused the spills. Bureaucratic hang-ups in the City of Malibu led to the snail’s pace of completing the new on-site sewage treatment plant and sewer system. The claim drew a McEnroe-like response of “You can not be serious!” from the audience.
Kissel even played the poverty card to justify inaction over the last decade and a half. Despite owning about 75 acres of some of the most beautiful coastal real estate on the planet, the Kissel Co. claimed it didn’t have the resources to build the needed facilities. The lawyer also cited constraints by what California would allow the company to charge tenants for rent and sewage treatment plant and system construction.
(One nugget in the Regional board staff report is particularly galling. The assessed property value of the scenic property? It’s listed at just over $6.5 million, yet another clear sign of what Prop. 13 has done to the financial status of California.)
I don’t get this many excuses from my three children for shirking their chores and obvious responsibilities.
At around 2:30, after watching the excellent prosecution presentation by Regional Board staff and part of the Kissel Co. defense, I left for the day thinking the enforcement hearing was well in hand. On Saturday, I was in shock to find out that the hearing did not end up with a final conclusion despite going to midnight.
Yesterday, I received the interim order from the Board. Good and bad. The final decision on the fine amount for the violations won’t be made until the December board hearing. Yet another long period of no deterrent for a chronic polluter.
The good news is that the hearing board upheld 15 of the 17 documented raw sewage spills and numerous other violations of the waste discharge requirements.
Now the really bad news. There is a question in the preliminary order of whether or not the Kissel Co. should incur any liability for blowing off the Time Schedule Deadlines for 18 months to two years. The question posed is: Can polluters be found liable if they did not discharge raw sewage while they were in violation?
The question is ridiculous on its face, and can jeopardize the use of time Schedule Orders for compliance assurance in the future. If there is no risk of fines when a time schedule order requires you to build new sewage treatment facilities except if you violate water quality standards, then what incentive is there for polluters to build the new facilities?
At this point, we’ve all run out of patience but we have no choice but to wait for the board’s final decision at the end of the year. To my mind, justice delayed is justice denied.