Letter to the Editor: Commenting on Piedmont Post Article on Measure A

Editor's note: Thomas Clark forwarded a copy of this letter to the Piedmont Post to Piedmont Patch. It is reprinted below, along with attachments which he included. Click here to read the "Counterpoints to Arguments Against Measure A Sewer Surtax" referenced in his letter, along with comments by Piedmont City Manager Geoffrey Grote.

To Paisley Stellis:

Your article in the January 18, 2012 issue of the Piedmont Post contains at least one clear falsehood specifically regarding me, and perhaps a second falsehood which, if not false, indicates that the City Council has violated the Brown Act and is illegally spending City resources to promote Measure A in an effort to refute my opposition to it.

Your article states that “Piedmont resident Thomas Clark sent a letter to the city on January 6, 2011, saying he had been asked by a City Council member, whom [sic] he declined to identify . . . ” (p. 25 of article). I have not sent a letter to the City. There is no such letter and you know there is not.  I believe you, or someone at the Piedmont Post, instead of printing my letter to the editor of the Piedmont Post as I requested sent my letter on to Mr. Nakahara, or to some other City representative, who then sent it on to Mr. Nakahara.  As you undoubtedly know, on January 5, 2011, I emailed to  the Piedmont Post a letter to the editor, that the Post chose not to print (see my email below -- Attachment A), but instead, in a disgusting exhibition of journalistic misbehavior, chose to use it to sit down with the City and gin up a "counterpoint" in violation of my constitutional rights as a taxpayer not to have my taxpayer money used to promote a ballot measure.  

Also, I have not "declined" to identify the City Council member and my letter to the editor  (Attachment A) did not state I declined to identify the Council member. No one has asked me to identify the Council member, most prominently you who wrote this language and should have known enough as a journalist to call me and ask.   

Your article goes on to state that “Public Works Director Nakahara wrote an extensive response to Clark’s letter at the request of the City Council, a report available at City Hall.”  First, if this is true, Mr. Nakahara did not have the decency to provide the response to me. What I did see, through third parties, is a document Mr. Nakahara sent to several other people, including you, called “COUNTERPOINTS TO ARGUMENTS AGAINST MEASURE A SEWER SURTAX”  but he never identified who made the arguments he purports to refute, he never sent the "Counterpoints" to me, and the “Counterpoints” never mentions me or any letter from me and it does not address even one of the challenges I raised in my letter to the editor. Second, the City Council could not have requested Mr. Nakahara to write a response to my letter without violating the Brown Act, because no such matter was on any City Council agenda.   

Throughout the controversy over Measure A the very important challenges raised by opponents, and specifically by me, have remain unaddressed, either in the “Counterpoints” or in any other document of which I am aware, as though the challenges were never raised. If Mr. Nakahara intended to address the objections I raised in my letter to the editor (Attachment A), then he shot wildly like a drunken soldier and missed the targets entirely. I will take the charitable view for now, and assume that Mr. Nakahara would never have written such a sorry document if he meant to refute my letter to the editor. Instead of answering the legitimate questions raised by Piedmont voters, I and other voter opponents to this wretched tax measure have been lied to and insulted along with the rest of the public. 

First, no one at the City or any of the Measure A supporters have never produced any document that supports their assertion that EPA or any other governmental agencies require that the remaining 40 percent of Piedmont’s sewer mainlines be replaced. I have read all of the EPA and other documents generated by the Regional Water Board and by the federal court litigation, and I can find no such requirement. (Before I retired in 2006 I was an active lawyer for almost 34 years, and I know how to read legal documents.  I also know the smell of bull----.) I have never seen a contrary legal opinion to mine and, in fact, the Piedmont City Attorney in his impartial analysis in the vote pamphlet takes obvious pains (to his credit, in view of the lies being told by his clients) to avoid stating that there is such a legal obligation. 

Moveover, Rick Schiller has shared with me the following email he received from Michelle Moustakas, the EPA Compliance Officer for the 2011 federal court stipulated order against Piedmont, confirming that there are no legal obligations such as are being falsely claimed by the City (underlining added by me):

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[Editor's note: Piedmont Patch has removed some personal contact information from the email below.]

Dear Mr. Schiller,

I am the Compliance Officer for Stipulated Order No. C 09-05684 RS (SO). Alexis had asked that I send you a copy of the final SO, and reply to the questions in your most recent e-mail.  The SO was sent to us in three parts, attached below.  It was lodged on 3/15/11 and approved by the Court on 9/6/11.  

In response to your questions:

1)  You asked if there are other cases in addition to the two Stipulated Orders (SO) which mandate actions to be taken by EBMUD and/or any of the Satellites with regard to sewer system improvements.  There are two additional active enforcement actions, both issued against the City of Oakland by the San Francisco Bay Regional Water Quality Control Board.  The link to the Cease and Desist Order is: http://www.waterboards.ca.gov/sanfranciscobay/board_decisions/adopted_orders/2009/R2-2009-0087.pdf;

and the link to the Administrative Civil Liability Order is:
http://www.waterboards.ca.gov/sanfranciscobay/board_decisions/adopted_orders/2011/R2-2011-0014.pdf

2)  The 2009 SO involves only EBMUD, not the Satellites, which is why you do not see anything in it with respect to a deadline for Piedmont to complete its mainline sewer replacement. The 2011 SO requires that Piedmont (and each of the other Satellites) submit a sewer repair and replacement plan as part of its Asset Management Implementation Plan, due July 2015.  The specific requirements for what must be included in this part of the plan are at subparagraph 73.B.3. The SO does not specify a deadline by which Piedmont must complete the mainline sewer replacement work, nor is there a stipulation for penalties to be assessed against Piedmont if they fail to replace or repair a certain length of pipe each year. However, the City is required to submit annual reports which provide information on their progress in implementing their plan, and must be able to sufficiently explain any deviation from the approved schedule. All penalties are described in Section XV. of the SO.  

I agree that Piedmont has had an aggressive schedule for sewer repair and replacement, and we expect that they will continue this schedule under the requirements of the SO, thus helping to reduce the frequency and number of sanitary sewer overflows.  

I'd be happy to answer any additional questions you may have.  My contact information is below.

Regards,
Michelle Moustakas

Michelle Moustakas, P.E.
Environmental Engineer
Clean Water Act Compliance Office
US EPA R9, Mail Code WTR-7
75 Hawthorne St
San Francisco, CA  94105 

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You know as well as I do that if the fictional EPA mandate actually existed, I would have found it, EPA would not have written the email it did to Mr. Schiller and the City would have no problem getting EPA to confirm in writing that there is such a mandate.  EPA has only written that there is no mandate.

Second, the City staff’s own financial data, contained in the MTRC Report, states that during the twelve-year period from 2910-11 to 2021-22, the cost to comply with the new 2011 federal court stipulated order monitoring and inspection requirements is $5 million (numbers Liz Schultz has demonstrated are significantly bloated), yet Measure A will authorize $11 million in new taxes during this period. The tax revenue is completely out of whack with the asserted basis for the tax. 

Third, the Council’s own Ordinance 699, which would implement the new Measure A tax, allows the revenues to be diverted from the sanitary sewer matters, which are the object of all of the EPA, Regional Water Board and federal court mandates, and be used for storm drain purposes. ( Section 20.F.6 provides that “funds from this surtax may be used in either the sanitary sewer system or the city storm sewer system as defined in Section 30.2.2.4 of the City Code.” )

Finally, during the MTRC deliberations, absolutely no alternative of working with the existing sewer tax revenues was examined.  Instead, only more taxes were proposed.

The foregoing obviously and strongly suggests something is dreadfully wrong somewhere at City Hall, when it lies to the public and conspires with the press to illegally spend public money to support a ballot proposition, and I intend to fight it with every resource I have available. 

Measure A should be roundly defeated, and an honest, open and public examination of the City needs should be undertaken.  The City staff should finally and fully address the issues and arguments raised.

Thomas Clark
Piedmont

ATTACHMENTS

ATTACHMENT A. EMAIL I SENT ON JANUARY 5, 2011, TO THE PIEDMONT POST CONSISTING OF MY LETTER TO THE EDITIOR (AND WHICH THE POST, INSTEAD OF PUBLISHING IT, PEDDLED IT OVER TO CITY HALL SO CITY HALL COULD SPEND MY TAX MONEY IN A FAILED EFFORT TO REFUTE IT)

Letter to the Editor: Vote No On Piedmont Measure A

Vote No on Piedmont Measure A Sewer Surtax.

At a Councilmember’s request I read 2009 and 2011 federal court orders to determine if they require the City of Piedmont to replace the remainder of its sewer mainlines.  I also read the Municipal Tax Review Committee (MTRC) Report, the Council’s new sewer surtax ordinance, various relevant EPA and Water Board documents and the Voter Information Pamphlet section on Measure A.

For the first time since I moved to Piedmont 39 years ago, but I now suspect not for the last time, I will vote no on a city tax measure, because I am compelled to vote no by a decent regard for honest and open government, as I explain below.

The MTRC Report and the arguments in favor of Measure A in the voter pamphlet expressly support the Measure A sewer tax on the asserted basis that the City must not only comply with the 2011 federal court order, but also must comply with an asserted “EPA Order” to remain on the city leadership’s ambitious schedule to replace 100% of the city’s sewer mainlines before 2020.  The former is true.  The latter is false. This is not a matter of opinion, but a matter of fact.

The asserted “EPA Order” does not exist, and there is no other order by any governmental agency that requires any additional rehabilitation.  In EPA’s own written words, it does not “not specify a deadline by which Piedmont must complete the mainline sewer replacement work, nor is there a stipulation for penalties to be assessed against Piedmont if they fail to replace or repair a certain length of pipe each year…”

The only order ever to require replacement of Piedmont’s mainlines was issued by the Regional Water Board in 1993 and was fully complied with by 2005, 9 years ahead of the deadline.  Voluntary city replacement of the last 40% of the lines obviously may legally extend beyond 2020, to whatever date is consistent with the existing sewer tax.

Moreover, according to the MTRC Report the cost to comply with the new 2011 federal court order over the 12-year period 2010-11 through 2021-22 is about $5.5 million.  Inexplicably, the MTRC and Council support a surtax that authorizes $11 million of new tax revenues during this same period, twice as much as needed even if the false premise that complete mainline replacement is required were true.

The Council on October 3 passed Ordinance 699 N.S. to implement the surtax, but included express language that allows the tax to be diverted to storm drain purposes, not the sewer purposes for which the surtax is supposedly needed.

Neither the MTRC nor the City publicly disclosed or discussed any alternatives to the surtax, such as the alternative of no surtax and a slight delay in the non-required completion of replacement of the mains instead of a new tax (on top of the up to $20,000 the Council has recently required most homeowners pay to replace their home sewer laterals), or a lesser tax that does not authorize twice the new taxes necessary even without the delay.  The present sewer tax generates well over $2 million a year, more than enough to pay both cost of compliance with every existing governmental order applicable to the city’s sewer system and the voluntary replacement of the remaining sewer mains.

City management, the Council and the MTRC have failed their fiduciary obligations to the residents of Piedmont to be diligent, honest, open and prudent. Vote No on Measure A.

Thomas D. Clark
Piedmont

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