Judge Revives Question of Need for Secondary Treatment of City Sewage : Courts: Musings throw curve in plans for $2.8-billion project and could return the complex case to square one.

By BARRY M. HORSTMAN

Aug. 31, 1990 12 AM PT

TIMES STAFF WRITER

By wondering aloud whether a federally mandated secondary sewage treatment plan is needed in San Diego, a federal judge has raised anew an old but overriding question that creates fresh doubts about the controversial $2.8-billion project, lawyers and city officials said Thursday.

During what had been expected to be a routine procedural hearing Wednesday, U.S. District Judge Rudi Brewster, to the surprise of attorneys on both sides of the case, explained that news stories detailing some marine scientists’ doubts about the environmental impact of secondary treatment have caused him to have second thoughts about the plan.

Rhetorically asking, “Why are we doing this?” Brewster described himself as “disturbed” over the level of scientific opposition and invited attorneys to file briefs by next month addressing his authority to review whether the city must proceed with the project, estimated to cost from $2.6 billion to $2.8 billion by the year 2003.

Though the prospect of even a hearing on that question on Oct. 1 hinges on several major legal “ifs,” should the judge eventually rule that San Diego could comply with the federal Clean Water Act without the full upgrade envisioned, the city’s sewage costs could be reduced by more than half, according to some local officials.

Although secondary-treatment advocates expressed concern Thursday that the judge’s legal ponderings could return the long-running case to square one, opponents--who contend that the treatment upgrade will do little to improve the ocean environment--welcomed what they see as perhaps the last chance to halt the costly project.

“It certainly was a very strange and disturbing development,” said Sierra Club attorney Bob Simmons. “What the judge did was put on the table something that could resurrect a non-issue not before the court. This raises many troubling questions.”

But San Diego City Councilman Bruce Henderson, who argues that the proposed sewage treatment upgrading is environmentally unnecessary and could stretch the city’s finances to the breaking point, hailed Brewster’s remarks as a “final opportunity to avoid a huge waste of public money.”

“I think the judge realized that, if we were ever going to examine the basic question of whether this thing is even needed, it was now or never,” Henderson said. “Nothing’s going to be delayed. The environment isn’t going to be harmed in the meantime. All the judge is doing is giving us a last chance to make sure we’re doing the right thing.”

Under an agreement between the city and the federal government, San Diego committed itself to the secondary-treatment program to settle a U.S. Environmental Protection Agency lawsuit accusing it of violating the Clean Water Act.

From 1981 through 1986, San Diego obtained temporary waivers from the act’s requirement that cities provide so-called secondary treatment to remove about 90% of suspended solids from sewage. The city’s advanced primary sewage treatment process now removes about 80% of the solids from waste water before it is discharged into the ocean off Point Loma.

After the EPA indicated that the city’s request for a waiver extension would not be granted, the city withdrew its application in February, 1987. Viewing secondary treatment as inevitable, some top city officials hoped that, by abandoning the waiver request, the city would be better positioned to attract federal funds to help pay for the project.

Most of the cost, however, would be financed through dramatically higher sewage bills--a politically unpalatable prospect for the council. Last month, the city increased sewage rates to help pay the anticipated costs

Those misgivings have been broadened by contentions from some scientists, including several at UC San Diego’s Scripps Institution of Oceanography, that the city’s current sewage treatment process does not damage the ocean environment--and, in fact, may even enhance it. Other scientists, however, argue that secondary treatment would improve water quality.

Given that the division of scientific opinion has dominated the San Diego debate for years, there was some head shaking Thursday over why Brewster chose now to cite that factor as the reason for a potentially comprehensive reevaluation of the settlement agreement.

Among attorneys in the case, there also was uncertainty over whether Brewster’s action reflected simply introspective musings or were indicative of serious doubts about the propriety of the overall secondary-treatment program.

“I think it was a little bit of both,” said James Dragna, a private attorney retained by the city to handle the case. “The judge was musing over serious questions about whether we’re going in the right direction and, if not, whether anything can be done about it.”

“These weren’t casual, off-the-cuff remarks,” Sierra Club attorney Simmons added. “It was a clear signal to me that the judge is contemplating some serious backtracking.”

However, a number of major legal and political hurdles would have to be cleared for that possibility to exist, starting with whether the City Council decides to avail itself of the options to which Brewster opened the door on Wednesday. Now in its summer recess, the council will not even consider Brewster’s offer until at least mid-September.

Though a majority of the council members support the sewage project, Henderson attributes that stance to some members’ feeling that they realistically had no other choice. That position may change, he argued, “when people realize the judge is giving us a chance to maybe save $1 billion”--even though the city still would have to spend hundreds of millions of dollars to upgrade its overall sewage system.

If the council or another party in the case asks the judge to examine the necessity of the secondary-treatment program, the essential question--and the one that Brewster encouraged the attorneys to address in their possible briefs--involves his legal authority to do so. Both the Sierra Club and Justice Department attorneys contend that the judge does not have the power to, in essence, block the EPA from enforcing the provisions of the Clean Water Act.

But, if Brewster were to decide otherwise, that could lead to a trial on a final question: whether there is sufficient scientific evidence and legal grounds for the city to reactivate its waiver request.

“This reopens the question of whether a waiver is a good or bad idea--which, at this stage, is in direct contradiction of the (Clean Water) statute,” Dragna said. “The government’s response is, whether it’s good or bad, it’s too late to talk about it. The judge’s response is, well, let’s still answer the question, and, assuming it’s not a bad idea, can we talk about changing the statute or getting a waiver?”

Even if Brewster or another judge were to force San Diego to proceed with secondary treatment, evidence about the scientific doubts about its necessity still could save San Diego money, Dragna explained.

As part of the case before Brewster, the city faces possible financial damages for its violation of the federal clean-water standards. At Wednesday’s hearing, Brewster postponed a trial on the possible penalties for three months, rescheduling it for next February--in part to provide more time to explore the other more substantial questions that he raised.

If the city could demonstrate that its past waiver requests were based on solid technical grounds, not simply bureaucratic foot-dragging, the judge might be disinclined to financially penalize the city, the lawyer said.