Wednesday Nov 17 2010
Judge rules in lawsuit
By: Gloria Beverage, Colfax Record Editor
Court stays penalties if city complies with wastewater order
The U.S. District Court issued a ruling on Nov. 2 requiring the city of Colfax to comply with their 2008 settlement agreement with Allen and Nancy Edwards, who live downstream of the city’s wastewater treatment plant. According to the judge’s ruling, both parties have agreed to a schedule of activities to ensure compliance with the original settlement agreement “in the interest of avoiding the costs of further litigation.” In fact, this month’s ruling appears to be an effort to bring the lengthy court battle to an end. Mayor Josh Alpine declined to comment on the court order “at this time.” City Manager Bruce Kranz also did not want to comment, stating he would wait until “we hear what the Edwards have to say.” Councilwoman Suzanne Roberts defended the city’s efforts to get the new wastewater treatment plant operative. “I want to emphasize that all the council members and the city staff are very conscious of protecting our environment – both locally and globally,” she wrote. “We have done everything to ensure the plant is operating at its fullest and safest capacity.” However, Edwards couldn’t hold back his frustration over what he believes was an unnecessary and lengthy court battle. “It’s very reasonable from the standpoint of the city,” Edwards said. “They’re asking us to wait for what we’ve been asking for — clean water. If they had done it (repairs) three or four years ago, it would be all done.” Under the terms of the 2008 agreement, the city had stated it would cease the release of polluted sewage into Smuther’s Ravine, the creek that flows through the Edwards property into the North Fork of the American River. Last February, however, the couple and the Oakland-based Environmental Law Foundation filed a motion with the court claiming the city had violated the agreement more than 4,000 times in 2009. The allegations ranged from sewage spills to lack of documentation on the operation of the plant. “The 4,000-plus violations of the agreement were a mix — many were reporting violations, but that number includes the 900 or so permit violations,” said Edwards. “The permit violations include violations of their various permit limits for discharge, receiving water, ground water and monitoring. Also, the 4,000-plus includes the days when the city spilled partially treated sewage from pond 2 into unlined (and leaking) pond 3, in violation of their agreement.” Earlier this year, the judge denied the city’s appeal of the contempt charges, delaying a decision on payment of fees and penalties. The latest court order requires the city to pay a stipulated penalty of $10,000 to the Edwards as compensation for an 11,200-gallon seepage spill from the plant onto their property between Sept. 29 and Oct. 14, 2009. The city is also being required to install a liner in Pond 3 at the wastewater treatment plant by November 2012 as well as finish the repairs/rehabilitation work on the current collection system pipeline by February 2011. In addition, the court will not accept the city’s “inability to pay” as a reason to delay completion of the project. The city is being told to have funds in place and begin advertising for construction bids by March 2012. In the event the city is unable to obtain sufficient funds, the judged ordered the city to apply for a state revolving fund loan or pursue a municipal bond. The order also sets deadlines for submitting monitoring reports, collection of effluent samples and requires the city to notify the Edwards of any building permit applications in the Colfax Pines residential development project as well as inspections of work at the plant. “It’s absolutely galling,” Edwards said. “The city knew they were violating the agreement. The question is whether they knew they were going to even when they signed the settlement agreement. They knew they were going to have to put water in pond 3.” Still, Edwards is trying to remain optimistic about the latest court ruling. “We lost our ability to grow crops for two years and now it will be four years,” he said. “All I ever wanted them to do was obey the law. I would just like to get back to growing vegetables and other crops.” While the judge delayed a final decision on fees and costs, he did spell out an installment plan to cover a payment of $40,000 to the Edwards’ lawyers to compensate them for the time spent preparing the lawsuit. “We still don’t have the order that specifies the fees and costs the city will need to pay,” Edwards said. “The judge has told us that it is not yet done, but is at the top of his priorities (barring emergencies).” The majority of those funds will go directly to cover the attorney’s fees, he added.