More than five years after a pair of sewage spills cost the Sewerage Agency of Southern Marin (SASM) $2.6 million in fines and fees, a Marin County Superior Court judge has rejected a lawsuit filed by one of its six member agencies against the the city of Mill Valley, which operates the SASM plant.
The Richardson Bay Sanitary District filed its lawsuit in 2012 against the city in an effort to get the city to reimburse and compensate “SASM and its respective agencies for the losses, fines and forfeitures they suffered as a result of the city’s operation and management of the facility.”
Bruce Abbott, the board president of the Richardson Bay district, declined to comment on the decision, saying he had not yet reviewed it. The district's attorney, Greenbrae-based Peter Brekhus, did not return calls for comment this week.
The Richardson Bay district, which collects sewage for more than 4,000 households in Strawberry and parts of Tiburon, is one of six SASM member agencies, along with Mill Valley, the Tamalpais Community Services District and the sanitary districts of Almonte, Alto and Homestead Valley. Through a contract agreement, the city of Mill Valley operates the plant on Sycamore Avenue and oversees its staff and management.
In issuing his tentative decision last week, Judge William McKinstry rejected the districts claim that the fees it incurred related to the spill, as well as an increase in member agencies fees subsequent to that, amounted to a legal claim against the city. Before filing the suit, Brekhus said the timing of it was likely prompted by SASM's 15 percent rate increase, part of which was to pay for infrastructure improvement and to replenish a reserve fund that was used to pay the fines and fees.
Mill Valley City Attorney Greg Stepanicich's defense centered on the claim that any expenses, costs or fees incurred in the aftermath of the spills were incurred by SASM, and therefore “only SASM has standing to assert such a claim." McKinstry agreed with that argument, noting that SASM itself was not a party to the Richardson Bay lawsuit.
The city’s position was that since the fines and fees were paid out of SASM’s reserves and not by individual agencies directly, individual agencies had no legal claim for reimbursement.
The legal battle stems from two spills of raw and partially treated sewage in January 2008 during a period of heavy storms. On Jan. 25, 2.45 million gallons of sewage overflowed from the agency’s storage ponds and out into Pickleweed Inlet. On Jan. 31, an operator error led to not enough pumps being available to pump water out of the plant, sending 962,000 gallons of wastewater underground and out into Richardson Bay.
In the aftermath of the spills, SASM faced a $1.6 million fine from the state Regional Water Quality Control Board. The fines were paid in full in three installments, according to Mill Valley City Manager Jim McCann.
Half of that fine went towards a shoreline protection and ecological enhancement project on Aramburu Island, which is in the northwest portion of Richardson Bay on the east side of Strawberry Point. The other half was used to establish the city’s Cash for Sewers program, which provided incentives for residents to upgrade their private sewer laterals that connect their homes to the city’s sewer system.
SASM also incurred approximately $1 million in engineering and attorneys fees from the spill. Though both of the spills originated from the SASM plant, the EPA’s enforcement action identified problems with the collection systems of all six agencies.
The city of Mill Valley has been the operator of the SASM plant on Sycamore Avenue since 1979. Although Richardson Bay district officials suggested the possibility of cutting ties with the city in 2010, the SASM board later approved a revised operations and maintenance agreement with the city to continue operating the plant.
McKinstry ruled "defendant shall recover it costs" related to the lawsuit, and city officials said they intend to do just that. The City Council approved this week a amendment of $200,000 to pay for Stepanicich's work on the case beyond the budget.
Richardson Bay has 60 days to determine if it will appeal the decision. Regardless, it's likely not the end of the SASM drama.
On May 7, voters within the Alto, Almonte, Homestead Valley and Richardson Bay district will participate in an election via mail to decide if those district should be consolidated into one. The election is the latest attempt to consolidate the tiny districts on the heels of Assembly Bill 1232, then-state Assemblyman Jared Huffman's bill that moves decision-making authority for consolidation away from district directors and into the hands of the countywide Local Agency Formation Commission (LAFCO).
The bill was signed into law by Gov. Jerry Brown in 2010, but the LAFCO board, with southern Marin Supervisor Kate Spears serving as the swing vote, voted 4-3 against using its authority to force consolidation that was granted by Huffman's bill.
For consolation to succeed in the May 7 election, at least 50 percent of voters in all four districts need to approve it. If the measure loses in any one of the four, consolidation dies.
A 2009 Marin County Civil Grand Jury report prepared in the wake of the spills concluded that the six sewer districts that comprise SASM could run more efficiently if they combined.