This is the final story in our series examining stormwater pollution and the flawed system that polices it. Read Part One here, and Part Two here.
Jerry Williams lost his business to the rain.
On Feb. 28, 2014, a half-inch of rain fell in National City. Like state water pollution laws required, one of Williams employees at A-1 Alloys Recycling Center grabbed a sample of water running across the northwest corner of his half-acre scrapyard.
The water was sent to a lab and tested for pollution. A report was sent to the State Water Resources Control Board. The results weren’t good. A business like A-1 is supposed to keep the amount of copper down to .0048 milligrams per liter. The water from A-1 was 2.84 parts per million copper, nearly 600 times the target.
By February 2015, two attorneys – Matt O’Malley of San Diego Coastkeeper and Drevet Hunt of Lawyers for Clean Water Inc. in San Francisco – had seen A-1’s lab results and others from the company going back to 2009. They told Williams they were ready to take him to court for violating clean water laws.
Williams’ attorney pleaded on his behalf. His was one of the businesses actually sending in the samples – many don’t – and he’d been trying to follow the law, attorney and family friend Carol Brophy argued in a letter to Coastkeeper.
“On a personal level, your client is not targeting a large ‘anonymous’ corporation, but a family and members of the San Diego community who have lived and worked here all their lives,” she wrote to O’Malley and Hunt. “Due to both a business downturn and family medical needs, there is no money to spare on litigation.”
O’Malley and Hunt sued A-1 anyway.
By February 2016, two years after it rained, A-1 Alloys Recycling Center agreed to go out of business and pay $52,000 to settle the lawsuit. Fourteen people lost their jobs. Williams’ life is now in ruins.
All the while, other businesses flout the law, don’t do the monitoring and likely make more in profit. Williams’ story illustrates the dark lottery stormwater regulation has become in California. The enforcement action against him was supposed to clean up San Diego Bay, which receives most of the region’s pollution. But there is little evidence that it did. It’s unclear whether the standards he did not meet were even useful indicators of water quality problems or that a rational enforcement system would have targeted his small scrapyard, rather than a larger industrial site.
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State bureaucrats are trying to regulate thousands of possible polluters, but they don’t know how many are even out there. Environmental groups, like Coastkeeper, are taking the law into their own hands and filing lawsuits against companies like A-1 because the state has failed at basic regulatory tasks.
In the modern era of clean water laws, regulators first focused on big polluters starting in the early-1970s. That helped, but America’s waterways remain dirty. Now environmentalists and regulators have also set their sights on smaller polluters because small bits of pollution add up. This is known as stormwater pollution. “Stormwater” is a fancy name for water on the ground after it rains.
In legal notices that it sends to companies, Coastkeeper has a boilerplate sentence, “The consensus among agencies and water quality specialists is that storm water pollution accounts for more than half of the total pollution entering surface waters each year.”
That doesn’t capture a bit of nuance: It’s not always clear how big of a problem a single business is. Many of the monstrous polluters have been reined in, which means there is more and more focus on smaller and smaller sources of pollution.
“The places where you can clearly find a problem and things are so bad that they directly relate to an outfall are mostly gone,” said Steven Bay, the principal scientist and toxicologist at the Southern California Coastal Water Research Project, a water quality research institute.
Yet, the regulatory system is designed to go after individual businesses. So that’s what environmental groups do.
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Williams got slammed for copper runoff, but his business was right by Interstate 5. His scrapyard may very well have been sending trace amounts of copper into the water, but the problem may also have been bits of copper from the brake pads of the countless cars that pass by.
Williams isn’t even sure the test results that he submitted were accurate.
For one thing, he lovingly calls his former employees who took the samples “idiots,” which is simply an acknowledgement of cold, hard reality: The people he had working at his scrapyard were not environmental engineers or laboratory scientists who went to college to learn how to collect water samples.
Williams says they were sampling in the wrong place: He had a pit on his property to catch runoff. His employees should have been sampling the water coming out of the pit. Instead, they were sampling water before it went into the pit, which means it was likely dirtier.
All of this is hearsay since the case never went to trial, but it gets to a powerful point about a vast uncertainty. Despite all the testing requirements imposed by the state, regulators and scientists don’t know everything about what is messing up the state’s waters, but the rules don’t always acknowledge that.
Because of that, stormwater rules can seem to lack a certain sensitivity and logic.
“A quarter-acre junkyard in San Diego is subject to the same rule as the San Diego airport – that doesn’t make sense to me,” said Xavier Swamikannu, a UCLA professor who used to be the head of the stormwater program for the Los Angeles Regional Water Quality Control Board.
Swamikannu also worked on a 2009 report by the National Academy of Sciences about stormwater regulations. The report, requested by the U.S. Environmental Protection Agency, was critical of both the EPA and state agencies. It concluded these agencies’ hope of cleaning up the nation’s waters by focusing on individual businesses was futile.
Take, for example, the tests A-1 had to do. Often, these tests show that pollution in the water exceeds limits set by the EPA or the state. Sounds bad. But the report found “it is unclear whether these exceedances provide useful indicators of potential water quality problems.”
Here in San Diego, for instance, the San Diego Regional Water Quality Control Board spent about a decade setting limits on the amount of metals allowed in Chollas Creek, one of the most polluted waterways in the region. They realized a milligram here and a milligram there adds up to thousands of pounds of metals heading right into San Diego Bay. But a decade after the limits took effect, the board is preparing to largely reverse its decision because its limits are now considered to be unscientific.
The National Academy of Sciences recommended that states start to collect better data so they can create better rules. A new round of industrial regulations in California could help the state do that.
In the meantime, a set of older rules is being used statewide, and it’s being used to file lawsuit against businesses like A-1.
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A-1 was easy to catch because it was reporting lab results to the state.
Not every business does that – in fact, it’s possible more businesses are ignoring clean water rules than attempting to follow them. Those businesses don’t have a required permit to operate. Over 2,000 businesses in San Diego likely lack these required permits, according to the city of San Diego.
Laurie Walsh, the head of the San Diego Regional Water Quality Control Board’s stormwater program, recently told the board that unpermitted businesses “are probably” causing more pollution than those that do have a permit. That’s because everyone with a permit is at least making some effort to follow the law. They’re doing lab tests and taking steps to keep their sites clean or to prevent dirty water from ending up in nearby gutters or creeks and eventually the ocean.
David Gibson, executive director of the board, said the disparity between people trying to follow the law and those flaunting it creates problems for everybody.
“If you’re an auto dismantler who runs an absolutely clean yard, it’s just got to gall you that the guy next door is saving a lot of money not having to do that [pollution control] – not having to do those monitorings and not having to run a very clean shop,” Gibson said. “He’s making a higher profit margin because he’s not carrying on the cost you are.”
The Coastal Environmental Rights Foundation has also notified and threatened legal action against 15 businesses in San Diego that failed to get necessary permits. A judge recently fined one of those businesses, National Steel & Metals in Barrio Logan, $3.1 million and ordered it to pay about $12,000 in attorneys’ fees.
The lawsuit and dozens of others was filed under a provision of the Clean Water Act, which allows anyone to step in and enforce clean water laws if regulators are lax. The foundation’s 15 legal actions aside, environmentalists have mostly been using that law to go after businesses that have a permit but are still polluting – a problem, but perhaps not the biggest problem.
O’Malley, the executive director of Coastkeeper, said his group is using the tools available to do what it can.
“Not being the regional board, not being a state agency, it’s really difficult for us to do it any other way,” he said.
S. Wayne Rosenbaum, an attorney who represented Williams during settlement negotiations with Coastkeeper, said environmentalists are using these lawsuits to fill their coffers.
“Other than a transfer of wealth, I am not aware that any of these cases have improved water quality, have improved general compliance with the permit,” he said. “So one has to ask: Is this really what Congress intended when they gave citizens the power to enforce the Clean Water Act?”
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Williams comes from a family of scrap metal guys. His grandfather, father, uncle, brother and son have all been in the metal business. He remembers wave after wave of regulations, each meant to clean up the state’s waters.
Business was tough and so was life when Coastkeeper came along. Sales were down and his daughter was ill.
Coastkeeper said it picked A-1 based on a “data-driven model” that identifies the most egregious polluters.
The group said its goal is to make businesses comply with the law – not to rack up legal fees or put anybody out of business.
“It’s in our best interest to work with all business to make sure they come into compliance,” O’Malley said.
Williams doesn’t see it that way. He tried to keep his site clean, he said.
“Your effort and what you do to prevent stormwater from escaping your property has no bearing on what they try to extort from you,” he said.
When it was clear Coastkeeper wasn’t going to back down, Williams switched lawyers and hired Rosenbaum, who generally advises his clients to settle cases.
Still, Williams also hired an environmental consultant, which he says cost tens of thousands of dollars. But it was to no avail.
“Half of my business went poof, and the ugliest part of it was I spent so much of my money trying to save it,” he said.
Coastkeeper declined to comment on the specifics of the negotiations, but O’Malley said he thought everyone was nearing some sort of agreement when, “They chose to close their location rather than spend their money on compliance.”
Williams said the environmental group wanted more from him than he had to give.
Three days before Christmas 2015, he signed settlement papers. Williams agreed to pay $40,000 to Coastkeeper and Lawyers for Clean Water and $12,000 to Friends of Famosa Slough, a nonprofit that protects a 37-acre wetland near Ocean Beach. He had to set up a payment plan, with a 10 percent interest rate.
Here’s where Williams is not an entirely sympathetic character: He said he hoped to be able to reopen A-1 under a different name – “A to Z Recycling, or something,” he said. Environmentalists say that sort of thing happens all the time. They shut one polluter down, then the same people set up shop under a different name.
Williams couldn’t make it work. He ended up turning the property over to his son, who has opened a modest business there. Whereas A-1 did a few millions of dollars a year in business and had 14 employees, Williams said his son’s is probably only going to do a few hundred thousand dollars and has no employees.
Williams still has his other business, A-1 Alloys, which sells new metal. He’s struggling to keep it open, and that too goes back to the lawsuit. He says one of his suppliers saw Coastkeeper’s lawsuit in a trade journal and stopped doing business with him because the supplier figured Williams was going to have trouble paying his bills.
Now, to try to keep his one business afloat, 60-year-old Williams finds himself working from 8 a.m. to 2 a.m. He said his wife isn’t happy about it.
He lives in fear that something else will happen to him.
“I’m just waiting for the next asshole to walk up and hand me the papers,” he said during an emotional interview at his office in San Ysidro.
Williams said he’d even thought about filing lawsuits like the environmentalists do, because he knows how much money they can make.
“I’ve really thought hard about doing it myself,” Williams said. “But I’m not that big of an asshole.”