This letter responds to the open letter from the City of Seward printed in various newspapers last week. The city has misrepresented pending litigation in an attempt to shame us into dropping a valid claim.
Resurrection Bay Conservation Alliance and Alaska Community Action on Toxics (collectively "RBCA") filed a lawsuit against the City of Seward in September 2006 because the city was violating the Clean Water Act. Two boat-repair facilities were not permitted for the storm water discharges. What the city failed to tell the public is that RBCA provided notice of these discharges to the city in March 2005 and in April 2006. The April letter was a formal notice of intent to file a lawsuit within 60 days if the city did not obtain the required permits. The city had 18 months to obtain the permits before any lawsuit was filed.
The city chose not to get the required permits. Instead the city fought, and lost, the lawsuit. The city then obtained the required permit under court order, but continued to argue that it had not violated the law and that our attorneys should not be paid, as provided for by law.
What actually happened as a result of this case is that the city is no longer illegally discharging industrial storm water. It has a permit. Boats are brought to the industrial site where they are scrubbed and power washed. Water and paint chips fall to the ground and are picked up by rainfall and snow melt. Boat hull paint contains cupric oxide and/or tributyltin, which are extremely toxic to aquatic life, in order to keep organisms from attaching to the hull. Boat maintenance activities also result in spills of paint, oil and grease and fuel, which are also picked up by rainfall and snow melt. As a result of this lawsuit, the city is now required to implement a storm water pollution prevention plan with best management practices to prevent pollutants from boat maintenance activities from entering nearby creeks and Resurrection Bay. This helps achieve the goal of the Clean Water Act -- to require permits to control discharges of pollutants and clean up the nation's waters.
In recent years, the new harbormaster in Seward has done great work to improve the practices at the harbor facilities to prevent water pollution. We very much applaud her work, and feel that this lawsuit has helped to make some of those improvements happen by making the city more aware of these issues.
The city also makes misleading statements that we sought $76 million in civil penalties. The Clean Water Act requires that civil penalties be assessed when there is a violation like the city's. All civil penalties go to the U.S. Treasury, not the prevailing party. If a maximum penalty had been assessed in this case, it would have reached millions; however, the judge determines the penalty amount, and we did not protest the $1 nominal penalty. We believe the penalty money would be better spent on future prevention of polluted storm water discharges.
While there are many mischaracterizations in the city's chronology, what ultimately happened is that we did prevail in this lawsuit. Over half the time spent on this case has been about attorneys' fees, which has not been our wish. We previously attempted to settle this issue, but could not because the city would not and has not made a serious offer. We had hoped that this recent swift and unanimous decision from the court recommending mediation would result in a successful negotiation. But without making any offer at all or attempting mediation, the city published its letter in the newspapers.
If the City of Seward approves of much of the work we do, it is puzzling that the city did not communicate directly with us. Our only aim is to compensate our attorneys for their hard work on this case, just as the city's attorneys have been.
Russ Maddox is on the board of directors of the Resurrection Bay Conservation Alliance. Pam Miller is executive director of Alaska Community Action on Toxics.
By RUSS MADDOX and PAM MILLER