Trial Over Sewage Spills Begins Today
By Pam Zubeck, The Gazette, Colorado Springs, Colo.
Jan. 28–Accused of spilling sewage into Fountain Creek in violation of the Clean Water Act, Colorado Springs Utilities will be in federal court today to defend itself against a lawsuit brought by the Sierra Club.
"This is a major waterway in Colorado, and we believe this is a very important case to protect the public health," said Sierra Club attorney Eric Huber. "We don’t want this to continue to be treated like an open sewer."
The nonprofit environmental group is seeking fines of up to $32,500 a day for spills that date to the late 1990s. The club also wants U.S. District Court Judge Walker Miller to order Utilities to fix its pipes faster than a voluntary plan that calls for upgrades lasting until 2023, Huber said.
John Walsh, a former federal prosecutor who represents Utilities, said the city will argue that officials have aggressively sought to improve the city’s sewage system and that Fountain Creek’s water quality is affected by many problems.
"The Colorado Springs system operates at industry standards or better, and they’re putting an enormous amount of time, effort and money into making the system even better," Walsh said. "We’re doing what we’re supposed to do and in many ways better than wastewater utilities of comparable size. There is no need for the judge to take any additional action."
In October 2005, Pueblo County District Attorney Bill Thiebaut sued the city. He was dismissed as a plaintiff in August when Miller ruled that Thiebaut failed to demonstrate legal authority for his involvement.
The Sierra Club filed suit Dec. 5, 2005, charging that dozens of recent sewage spills into Fountain Creek, which joins the Arkansas River in Pueblo, violated the Clean Water Act.
The lawsuit followed the Colorado Department of Public Health and Environment’s decision to fine the utility a record $110,470 and impose a timetable to make inspections and repairs to the city’s wastewater system. The fine stemmed from 62 sewage releases totaling 2.9 million gallons between 2001 and 2005.
Utilities officials blamed some problems on vandalism of manholes and drainage storms, including a June 2005 deluge that sent 344,000 gallons of raw sewage into the creek. The state health department previously disciplined the city after a powerful storm knocked out portions of the city’s system in 1999, sending about 71 million gallons of untreated sewage down Fountain Creek. Although the fines were a record for the city, Huber called them symbolic.
"The state came in and gave token fines so Colorado Springs could argue that something was being done," he said. "They (state officials) gave them a remedial program that only addressed 15 percent of the pipes."
Among the Sierra Club’s witnesses:
- Bruce Bell, an environmental engineer from Monroe, N.Y., who has evaluated sewage systems for environmental groups, the Environmental Protection Agency and the Justice Department. He’ll testify about the system’s condition.
- John Woodling, a retired aquatic biologist with the Colorado Division of Wildlife for 35 years, will testify about the spills’ impact on fish, wildlife and people.
In addition, an economist will testify about Springs Utilities’ ability to pay for faster and more far-reaching upgrades.
"We want the Clean Water Act enforced, and we want the raw sewage going into Fountain Creek to stop," Huber said. "So we’re going to ask the judge to order an expedited program to make that happen."
Walsh said the city has spent $110 million to maintain and improve the collection system since 2004 and plans to spend another $250 million in the next 10 to 15 years. The work has included securing manholes, replacing creekcrossing pipes and building a $10 million diversion pond along the creek to sideline sewage should a spill occur.
Walsh plans to call Michael Rothberg, an engineering consultant from Denver, and George Tchobanaglous, an engineering professor at the University of California-Davis.
He said they will testify that Springs Utilities has a zero spill policy, "but the unfortunate reality is that Fountain Creek and its tributaries have problems from a host of different sources."
"What they’re going to do is give the court the context of the water quality problems," he said. "Fountain Creek water quality problems are larger than the events alleged in this case." Utilities CEO Jerry Forte and several employees also will testify.
"Colorado Springs Utilities understands that its responsibility is to minimize or eliminate wastewater spills," Walsh said. "Because they take responsibility for that, Colorado Springs Utilities has spent hundreds of millions of dollars to improve its system.
"Those efforts have been successful, and the benefits can be seen in 2007, when the number of spills and size of spills was the lowest in many, many years."
The trial before the Denverbased judge will last two weeks, with court being held Monday through Thursday of both weeks.
Lawsuit details
The Sierra Club filed suit Dec. 5, 2005, charging that dozens of recent sewage spills into Fountain Creek, which joins the Arkansas River in Pueblo, violated the Clean Water Act. The lawsuit followed the Colorado Department of Public Health and Environment’s decision to fine the utility a record $110,470.
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