Regional Water Quality Control Board officials would rather see
results over endless litigation
Morgan Hill – When it rains, the stench of thousands of gallons of wastewater spreads out from the Furtado Dairy, fouling the air above east Gilroy.
“When you live by a dairy, you have to put up with the smells that go with it,” said California Highway Patrol Sgt. Dave Hill, who lives near the Ferguson Avenue dairy. “In the last six months, it’s been worse. Sometimes the smell is overpowering. It’ s more than just the usual manure, it’s a sickly smell. It gets down right nasty.”
For the last six months, dairy owner Manny Furtado has been dredging his farm’s retention ponds under an order from the Central Coast Regional Water Quality Control Board, a state agency with the power to shut down Furtado’s 700-cow operation. He’s made progress correcting myriad environmental problems since he spilled 240,000 gallons of manure water that nearly reached the Llagas creek last May, but his work is behind schedule.
But rather than step up enforcement efforts and impose hundreds of thousands of dollars in fines, the water agency recently gave Furtado another year to comply with its cleanup order, a decision that upset Furtado’s neighbors and fed a perception in the South Valley that the board doesn’t do enough to protect the region’s water.
For all the praise the agency receives for the firm hand it’s taken with the Olin Corp. and the area’s perchlorate contamination, the water board is a magnet for criticism from government officials, environmentalists and residents who think the board hands out too many carrots and is too slow to reach for the stick.
“Extending timelines is not holding him accountable,” Hill said. “Don’t give him more time because he’s done one little thing. I would never like to see someone’s business shut down, but that’s the owner’s decision if he’s not doing what he’s supposed to be doing.”
Brian Schmidt, a legislative advocate with the Committee for Green Foothill drew a parallel between the Furtado Dairy incident and the American Institute of Mathematics golf course illegally built by electronic entrepreneur John Fry east of Morgan Hill.
Schmidt has been working to have the course, which was built without any environmental clearance or permits, shut down.
But like other regulatory agencies – the city of Morgan Hill included – the water board is working with Fry to grant him permits after the fact.
“When an order comes down, as long as the recipient seems to be showing some progress, the agency follows the path of least resistance,” Schmidt said. “Whether that’s really in the public interest is questionable.”
The water board did hit Furtado with a $5,000-a-day fine that has climbed above $600,000, but as long as the farmer works toward compliance, he’s not likely to pay a penny, even if he continues to violate deadlines.
Even though his farm has a history of environmental degradation stretching back 20 years that caused water board engineer Matthew Keeling to say he was embarrassed at his agency’s lack of enforcement.
Roger Briggs, the board’s executive officer, agreed that the agency’s oversight of Furtado Dairy has “been spotty at best,” but said the relatively small operation is a low priority because it doesn’t represent a major threat to the groundwater, unlike the Olin Corp., a road flare manufacturer that contaminated South County’s groundwater with perchlorate, a sodium known to interfere with thyroid function.
“It’s always a judgment call as far as what’s going to be effective,” Briggs said. “Furtado thinks we’re being too harsh with him. Olin thinks we’re pushing them too hard. There are differences in terms of expectations. I’d agree that it’s a chronic situation that’s gone on too long, and we’re trying to get him back on track. But Furtado doesn’t have the resources of Olin.”
And for the most part, the board gets high marks for its handling of the perchlorate contamination.
Just three years after the pollution was revealed, Olin is about to announce a plan to clean it, a pace that observers say is almost unprecedented.
Although it ultimately lost on appeal, the water board pushed Olin to continue to provide bottled water to residents whose wells tested below the state’s public health goal for perchlorate of 6 parts per billion.
“They are responsive, they listen to all sides, they are unbiased,” said Sylvia Hamilton, chairwoman of the Perchlorate Community Advisory Group, which formed to help direct clean up efforts. “They don’t always move as fast or take as hard a line as I would prefer, but I can live with that as long as I see them moving forward. As long as I see them working within the guidelines they have, I’m very supportive of them.”
That’s not how Morgan Hill City Manager Ed Tewes views it.
Where the Santa Clara Valley Water District and city of Gilroy see an agency exhausting its resources to contain and clean the perchlorate plume south of Olin’s now-closed Railroad Avenue factory, Tewes sees a timid organization that won’t force Olin to clean up Morgan Hill’s portion of the plume because its officers are fearful that their enforcement decisions will be overturned by the state water board or end up in court.
“Our concern has been that the only difference between the northeast flow and everything south of Tennant [Avenue] is that Olin objects and that is not a reason for making the determination,” Tewes said. “The regulatory scheme in California is highly legalistic, and the regional boards have their decisions appealed to the state board. Perhaps there’s an understandable conservatism to ensure that their decisions are dealt with without having to go through the legal process.”
Wendie Rooney, community development director for Gilroy, has a much more positive view of the board but agrees that the agency appears to fear litigation.
Once Olin accepted the board’s cleanup order that includes Gilroy, she said, the agency pushed the company considerably harder to install sentry wells to protect the city’s groundwater, which has so far escaped contamination.
“They’ve always been in agreement with us, but they’ve taken a much stronger role in the last year,” Rooney said. “I think there was a concern that they were going to lose control of administering the [clean up order] and it would end up in litigation.”
And Olin’s record of appeal is unblemished. Last May, the state board over-ruled a regional board order that the company provide water to San Martin residents whose wells test for perchlorate as levels as low as 4 parts per billion.
And the company successfully resisted an order to conduct so-called forensic testing in Morgan Hill to determine the source of the city’s perchlorate.
When Olin threatened to litigate that issue, the water district stepped in to perform the tests, which will be done this year.
Briggs, though, said the possibility of an appeal or a reversal doesn’t figure in his agency’s decisions.
“That’s dead wrong, “Briggs said. “We can’t [name Olin the discharger] until we have the weight of evidence on our side. I don’t think we’re as biased as Morgan Hill or as biased as Olin. If that was true, we wouldn’t have fought for 4 parts per billion. We don’t shy away from litigation, we unfortunately see too much of it. We don’t say ‘gee, we’re afraid someone is going to sue, we better not do what we’re supposed to do.’ ”
William L. Rukeyser, a spokesman for the state water board, compared the regional water boards to triage units, constantly choosing between pressing issues and finite resources.
“One of the questions that all regulators have to look at is where they will get the most bang for their buck,” Rukeyser said. “Will it be through a partnership effort that may encompass the discharger or does it makes more sense to spend hours building a bullet-proof case against a polluter and going through formal hearing and fine process and bringing down the hammer in a high-profile manner.
“There’s a heck of a good argument for either process, but you have to remember that building a bullet-proof case is much more expensive and labor-intensive than the other way.”
