LAWYER: AGENCY IS DOING ITS PART

0 Comments | Gazette, The (Colorado Springs), Feb 8, 2008 | by PAM ZUBECK

DENVER - Colorado Springs Utilities is pouring more than $300 million into preventing sewage spills, its attorney said Thursday in asking a federal judge to deny claims for stiff penalties in a lawsuit filed by the Sierra Club.

"No other community has a larger stake in ensuring the environmental quality of Fountain Creek," attorney John Walsh said in his closing argument. "That's why Colorado Springs is pouring over a third of a billion dollars into its wastewater system."

The U.S. District Court lawsuit, filed in late 2005, accuses the city-owned agency of violating the federal Clean Water Act with more than 100 sewage spills into Fountain Creek or its tributaries since 2001, 40 of those since 2004.

Utilities has paid fines in recent years totaling roughly $270,000 for spills that poured millions of gallons of sewage into the creek.

But the Sierra Club wants U.S. District Court Judge Walker Miller to impose fines of up to $32,500 per day per spill and to order the city to speed up its upgrade plan, which spans the next 16 years.

Walsh, a former federal prosecutor representing the city, urged Miller to consider how much Utilities already has done and plans to do without being under a punitive mandatory schedule.

He said the city has spent more than $100 million on various projects, among them cleaning pipes every two years instead of every four years at the most.

"Colorado Springs very conscientiously went out to identify pipes that need replacing and cleaning," he said.

He noted, though, that some spills have been caused by vandalism or severe storms that flood the system, events beyond Utilities' control.

While the Sierra Club wants the judge to order a strict schedule for cleaning pipes, among other things, Walsh said, "It's been in place without specific orders from anyone. We are doing what needs to be done to be sure there are not blockages in this system."

Walsh noted the city's schedule is more than twice as frequent as the industry average.

Another program, which uses robots to inspect pipes, covers up to 12 percent of the system per year, he said. That's also more than twice the industry average.

The city's efforts, Walsh said, have caused the number of sanitary sewer overflows to decline from previous years.

Walsh also noted a witness for the city, Adrienne Nemura, a water quality expert from Ann Arbor, Mich., testified that even if there was never another Utilities spill, Fountain Creek's water quality has other problems.

That's because nearly a dozen other agencies discharge sewage into the stream, and stormwater that carries pollutants from parking lots to cattle pastures affects the creek.

But Eric Huber, the Sierra Club's attorney, reminded the judge the Clean Water Act's standard is not how Utilities stacks up against other wastewater operations.

"The law requires they have a discharge permit, not that they meet industry standards," Huber said. "Comparing what others are doing isn't the test for whether injunctive relieve should be issued."

Huber also noted that while 2007 was "a good year," with 33 sanitary sewer overflows, "one year is not a trend or indicative that this program is working."

He noted there were 41 overflows in 2003, followed by a spike of 58 in 2005 and 60 in 2006.

"The Clean Water Act doesn't say, 'Do the best you can,'" he said. "We're asking you to assess civil penalties in an amount high enough to deter future spills."

Miller gave no time frame for his decision.

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