In the Absence of State Enforcement, Private Attorneys Have Become Pollution Police

This is Part Two in a three-part series examining stormwater pollution and the flawed system that polices it. Read Part One here, and Part Three here.

The system for enforcing federal and state clean-water standards is in such disarray that outside environmental groups have become a sort of private police force. They’ve begun a crackdown on companies that are fouling up creeks and coasts, and they are using the government’s own records to do the government’s job for it.

Since 2014, the Coastal Environmental Rights Foundation and San Diego Coastkeeper have filed or threatened to file at least 43 lawsuits against area companies for violating clean water laws, according to state records. The groups are mostly targeting light industrial sites, particularly scrapyards.

For years, thousands of businesses across the state have spent thousands of dollars testing water that runs off their sites after it rains. They send those lab results to the State Water Board. If the results show there’s too much pollution, the state is supposed to force polluters to clean up and punish them if they don’t.

There are a few big holes in this system, though. For one thing, the government doesn’t even know how many businesses it is trying to regulate. That means an untold amount of pollution is going unchecked by the agencies paid to clean up the state’s waters.

There’s another startling hole: In recent years, officials at the San Diego Regional Water Quality Control Board, a regional arm of a state agency, were not even looking at all the lab results it received from possible polluters.

People paid to read mounds of paperwork where companies self-report water-quality violations were not doing it.

“We may have some students going through them or interns going through them, or something like that,” Wayne Chiu, a staffer at the San Diego Regional Board, told me last spring. “But for the most part we have not been able to do a real comprehensive review of all the data that has been submitted.”

So even companies that were admitting to violating clean water standards could pass unnoticed beneath the nose of state regulators.

A fresh pair of eyes has been going over those files for the last several years: private attorneys. The regulatory paperwork is public, so outside environmental groups are combing through it, looking for companies to take to court.

That’s resulting in a patchwork of costly settlements for the businesses that actually submit lab reports about how much pollution is coming off their property, in accordance with state law.

But that doesn’t include companies that evade the system entirely. That could be thousands of companies or even tens of thousands – nobody really knows.

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In recent years, environmentalists turned to a provision of the federal Clean Water Act that invites anyone to step in if government regulators aren’t doing their job.

It’s sort of like a citizen’s arrest, but for environmentalists. Attorneys have threatened legal action over 300 times in the past three years, including the several dozen threats made in San Diego alone.

State officials say their problem is simply staffing. There are several dozen staffers statewide to handle a pollution control system that covers tens of thousands of possible polluters, including not just industrial sites but freeways, sewer systems and construction sites.

Matt O’Malley, the executive director of San Diego Coastkeeper, doesn’t buy this lack-of-resources excuse, which pretty much every government agency that has ever faced scrutiny turns to.

His small nonprofit went through scores of filings by businesses at the same time the Regional Board admits it wasn’t reading everything it got.

“You saw industry get complacent or not really pay attention to the regulations they are supposed to comply with,” O’Malley said.

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Before, the lab results that businesses provided to the state came in a variety of formats, including forms full of hard-to-read handwriting.

Since late 2015, companies have started to file their lab results electronically, which makes it easier for regulators to find polluters. It also closes one of the biggest holes in the system, which is that reports were simply going unread.

That, however, does not itself make the water any cleaner. About 10,000 businesses are submitting lab results to the state. Currently, about a fifth of them are producing more pollution than is allowed.

It’s easy for environmentalists to find a target, said S. Wayne Rosenbaum, an attorney who represents the businesses being subject to legal actions.

“There is no facility that is 100 percent compliant, 100 percent of the time,” he said.

Rosenbaum said he advises clients to quickly settle when they are put on notice by environmental groups. That’s because the stakes are so high. The law allows for penalties of up to $37,500 per violation.

To give one recent example, in June the Coastal Environmental Rights Foundation filed a Clean Water Act violation notice against Aztec Technology Corporation, a shipping container company with a two-acre lot in Vista.

Water running off the company’s property exceeded water-quality benchmarks for iron, zinc, aluminum and other pollutants. The company’s own lab tests said that water coming off its property contained 20 times as much zinc and 110 times as much iron as water quality standards allow.

The company self-reported 27 different readings that exceeded benchmarks. Because each violation for each pollutant is counted separately, Aztec theoretically faced $1.1 million in fines.

Most of the time, those sorts of eye-popping numbers don’t amount to anything. The government rarely, if ever, seeks that kind of penalties. Instead, those big numbers are used as leverage by the environmental groups, according to a 2011 report by the State Water Resources Control Board’s enforcement office. In fact, it’s not in the environmental groups’ interest to have those fines paid, because the money would go to the U.S. Treasury, not to clean up dirty water.

Instead, the environmental groups ask for money for themselves and for other environmental groups in the area. They also require companies to begin buying technology to reduce the pollution running off their sites.

Rosenbaum said he’s settled about 20 cases this year for about $40,000 apiece. Those cases were mainly settled out of court, so the figures could not easily be verified.

But that would be a far steeper price than government regulators typically extract. Since 1999, the San Diego Regional Water Quality Control Board has only taken civil action against these kinds of industrial polluters 33 times, imposing a total of $112,000 in penalties.

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When they think about filing a lawsuit against a polluter, environmental groups have to first notify the state and federal government and the companies. The agencies and the business all have 60 days to remedy the problems.

If the government steps in to try to hold the business accountable, their action shields the business from a lawsuit and it puts the government – rather than a third party – in charge of what happens next.

Except nobody can recall that happening in California. Instead, the government does nothing and leaves the next move up to environmental groups. Sometimes they go to court, sometimes they get companies to settle the cases and collect thousands in attorneys’ fees and sometimes they force companies to take steps to reduce the pollution coming off their property.

Rosenbaum said the State Water Resources Control Board and the nine regional boards that report to it, including the San Diego board, are leaving business to “sink or swim on their own.” For that, he said, the government should bear a “great deal of shame.”

At times, the San Diego Regional Water Quality Control Board has seemed to encourage these lawsuits, including when Voice of San Diego first reported on them over a year ago.

“If (Coast Law Group) can resolve issues with their citizen enforcement power, we love that,” David Gibson, the head of the San Diego agency, told us. “I’m sure they’re wondering why we aren’t offering more enforcement. I wish we had boots on the ground to do inspection and enforcement.”

At other times, though, Gibson has expressed concern that businesses are being forced to follow rules that don’t make much sense to begin with.

Instead of singling out a business, Gibson prefers an approach that finds the worst toxins in the region’s waters and then works to clean up that pollution.

That’s fundamentally different from the approach handed down by the state. The State Water Resources Control Board has been working to expand the number of businesses covered by its regulations and is working to hold each one accountable for the pollution coming off its property.

“We are stuck with facility-by-facility monitoring, for which we’ve historically found relatively little value,” Gibson said.

It’s that monitoring data that the environmental groups are using to target businesses.

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Coastal Environmental Rights Foundation is led by prolific public accountability attorney Marco Gonzalez.

Gonzalez took a look at the industrial water pollution control system a few years ago and started threatening lawsuits against polluters because the state wasn’t taking them to task. He has threatened more of these lawsuits, by far, than anybody in the San Diego region.

Gonzalez says he chooses to target businesses not just because they are polluting but because they are operating in already neglected parts of the county, like Barrio Logan and National City.

On some residential streets, Gonzalez said, trucks full of scrap metal circle neighborhoods, and the scrapyards send bits of metal into creeks. That sort of pollution would never be allowed in more affluent places, like La Jolla or Rancho Peñasquitos.

“We’re like, look, if you’re going to put the dirty shit in the middle of a residential area, you’ve got to be at least the ones who comply with the law,” Gonzalez said.

Even though the state now has an electronic filing system that allows officials to quickly look at lab tests from businesses instead of wading through piles of paper, Gonzalez doesn’t expect that to spur the regional board to action.

“If history is any evidence of what we can expect now, no one is going to do anything,” he said.

Since the database of lab results is public, Gonzalez and others can now easily find companies that are polluting the state’s waters.

They are also trying to find businesses that should be in the system but are not.

The foundation has notified and threatened legal action against 15 businesses that failed to enroll in the pollution control program, said Livia Borak Beaudin, an attorney for the group.

She said cities and the regional board are both reluctant to act against polluters for political reasons: They could be perceived as picking on small businesses.

“They don’t want to fine them, they don’t want to lose their businesses,” Beaudin said.

Andrew Keatts contributed to this story.