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'Are you after our blood?' 

A second volley of due process objections rocks the water board cease-and-desist hearings

With the third trial day of the Los Osos 45 just minutes old, elderly Baywood Park resident Ybi Van Ekeren crept up to the podium. A bustling crowd packed Regional Water Quality Control Board chambers on Jan. 22 to hear the directors review cease-and-desist order drafts against the last batch of Los Osos septic owners prosecuted in a 2006 roundup. The Holland-born Ososite spoke with mellow cadence quietly and clearly in a heavily Germanized dialect as she extolled the seldom-heard virtues of her troubled community.

Van Ekeren's speech abruptly changed lanes about 30 seconds in.

Water board chairman Jeff Young and his small panel of directors listened attentively as Van Ekeren recounted a story from her youth of her village's encounter with Reich occupation forces. The sordid tale described how Nazi officers dealt with the problem of Dutch men refusing to register for forced labor pools.

"From time to time the soldiers held what was called a 'razzia,' going from house to house to arrest offenders, who were then put in a prison and forced to work for the Germans," she explained.

Van Ekeren said it was easy to escape from the prisons, but, to discourage that route, the military imposed a harsh policy upon the community. Every morning the roll call came up short, they randomly shot two people.

The reserved woman's less-than-subtle objection to the proceedings, which selected 45 Los Osos homeowners to answer for the problems of the groundwater basin, set the tone for the Jan. 22 continuation of the administrative hearings that began in San Luis Obispo more than a month prior. Three out of seven board members appeared for the evidentiary hearing to decide whether to issue cease-and-desist orders (CDOs) to the final four households accused of discharging their septic tanks in violation of the basin plan.

Protests to the constitutionality of the event echoed with renewed vigor and, among the discord, a few fresh points met the record. One of them centered on the absence of several board members, chiefly water quality specialist Daniel Press, whom several CDO recipients labeled as the lone voice of reason during the mid-December rendition.

Chairman Young calmly explained to the rustling room that the decisions reached by the evidentiary panel on Jan. 22 were strictly advisory and assured the homeowners that the missing directors were watching at home.

"What would you do if AGP wasn't here to record it through the donations of the community?" resident Gwen Taylor cried out from the crowd.

The documentation services of Morro Bay-based AV company AGP only arrived after Los Osos citizens passed around the collection plate in November to pay for baseline expenses. The water board discontinued payment of AGP fees in the summer due to budgetary shortfalls.

The regulatory body also keeps a recorder on hand to enter information and testimony into the official transcripts. That, however, raised another objection regarding what information makes the record. Adding to the litany of case data struck by the board as inadmissible in December, a motion by attorney Shaunna Sullivan to include appeal documentation submitted to the state board by a group of 14 CDO recipients on Jan. 16 was blocked from the hearing by Young and director Gary Shallcross.

Information of this sort is typically guaranteed admissibility under California legal code, but not in administrative hearings.

"This is another example of what goes on at these hearings of people not following the rules," state prosecutor Reed Sato commented.

Arguing on behalf of defendants Charles and Norma Wilkerson, attorney Sullivan challenged prosecution team engineer Matt Thompson on the state's admitted inability to establish specific proof of nitrate discharging on her clients' property. The prosecution team maintains that operating a septic tank must, by the very mechanics of that apparatus, discharge nitrate-contaminated wastewater.

"Are you regulating discharges or waste?" Sullivan asked.

"We're regulating waste discharges," Thompson responded.

Sullivan went on to question Thompson's expertise in making such a determination and asked if anyone on the prosecution team knew when the house was built. After receiving no answer, she disclosed that the Wilkersons built on the property prior to 1983, before any legal or administrative restrictions existed in what's now known as the prohibition zone.

Sullivan's point echoed much of the argumentation documented in an appeal effort spearheaded by Prohibition Zone Legal Defense Fund (PZLDF) spokesperson Gail McPherson. McPherson, who dominated much of the December hearing, again spoke before the board Jan. 22 to argue as to the veracity of disputed evidence.

The PZLDF petition challenges all orders issued under legal objections to the process on behalf of 14 petitioners and, more informally, "all individuals and entities targeted in the future." Water code allows 30 days for an appeal, which precluded the final defendants from joining the petition.

Since the drafting of the CDOs back in the spring, served homeowners have railed about the potential threat of future criminal enforcement and back-breaking fines a lack of control over a community-wide wastewater system needed to comply with the orders inadequate agenda space to mount a legal defense an alleged lack of proper notification insufficient accommodations made for the non-tech-savvy and elderly and what they see as unreasonable efforts by the board to strike valid evidence.

"Do you want us to get a sewer or are you after our blood?" Van Ekeren asked the panel. "We are not your enemy. We want your cooperation, not your vengeance."

Staff Writer Patrick M. Klemz can be reached at pklemz@newtimesslo.com.

 

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