Residents of the border city of Imperial Beach claim Veolia failed to stop dumping sewage into the Pacific Ocean and local waterways, perpetuating a public health and environmental crisis.
By Sam Ribakoff, Courthouse News Service
Residents of a southern San Diego border town and environmental groups have filed multiple lawsuits to stop a company that operates a dysfunctional federally funded wastewater treatment plant from continuing to dump sewage and toxic chemicals into the Tijuana River and the Pacific Ocean, they claim.
In a San Diego federal court on Wednesday, Veolia Water West Operating Services, Inc. argued in one suit that it’s not to blame for the pollution that residents of Imperial Beach claim has caused an environmental and public health crisis that’s making the value of their homes go down — Mexico, as well as an international agency that regulates waterways between the U.S. and Mexico, is.
“There is a very significant and very important problem in Imperial Beach because Mexico is sending untreated waste,” said Matthew Ingber of Mayer Brown LLP, an attorney for Veolia. “This problem needs to be fixed, but the plaintiffs are targeting the wrong party.”
Ingber argued that Veolia is a just contractor that operates, manages, and maintains the wastewater treatment plant that abuts the U.S.-Mexico border for the International Boundary and Water Commission, a joint U.S.-Mexico agency that regulates and resolves water and pollution issues in rivers and streams shared by the two countries.
In 1990, the two countries agreed to jointly fund and build a wastewater treatment plant on the U.S. side of the border meant to treat wastewater from Tijuana, Mexico, and then dump it into the U.S. side of the Pacific Ocean.
However, the growing population and industrial sector in Tijuana, plus inadequate infrastructure on both sides of the border, cause wastewater to flow through the Tijuana River Valley and into the Pacific Ocean.
Residents claim Veolia has known about the problem for years and negligently failed to act on it.
“We think the problem in Imperial Beach has nothing to do with Veolia,” Ingber said. “Mexico is the problem.” The problem is a political issue that needs to be solved by Congress since it allocates funding to the plant, he added.
IBWC itself should be added as a defendant in the case since it is the ultimate decision-maker over what Veolia can and can’t do, Ingber said. Otherwise, Veolia would be on the hook for damages it shouldn’t be liable for.
The plaintiffs’ claim, he added, doesn’t adequately plead what wrong the company did.
“How do you address the argument here that it’s too generic?” asked U.S. District James E. Simmons Jr., a Joe Biden appointee.
Stephen Morris of the Law Offices of Stephen B. Morris, the plaintiffs’ attorney, asked Simmons for leave to amend their complaint to add details to their claim that Veolia’s actions caused a nuisance.
“The defendants, by acting or failing to act, created a condition or permitted a condition to exist, that was harmful to health and was indecent or offensive to the senses for all persons living in Imperial Beach. This condition interfered with the plaintiffs’ use or enjoyment of their homes. For example, families cannot enjoy the simple pleasure of swimming in the water in Imperial Beach because it is toxic and dangerous and residents must endure a ‘stink’ coming from the ocean which has caused many residents to post signs saying ‘STOP THE STINK’ in their yards,” the plaintiffs write in their complaint.
The smell and health effects of the pollution crisis have reduced the Imperial Beach plaintiffs’ home values by $300 million, they add.
Morris said he can add more specific claims to the suit with the assistance of an environmental engineering professor at the University of Michigan named Glen Daigger. The plaintiffs are also looking into adding IBWC as a defendant, he added.
Before taking their arguments under submission, Simmons read a tentative ruling, denying Veolia’s motions to dismiss the plaintiffs’ claims because they had no standing and denying its motion to dismiss over failure to state a claim. Simmons tentatively granted the motion to dismiss the plaintiffs’ nuisance claim but allowed them to amend their complaint.
Simmons added that he’s presiding over several lawsuits against Veolia. A suit brought by two environmental groups, San Diego Coastkeeper and the Environmental Rights Foundation, claiming Veolia and IBWC have discharged billions of gallons of raw sewage, pesticides, sediment, and heavy metal industrial pollutants like DDT and PCBs into southern San Diego County in violation of both the Clean Water Act and the sewage treatment plant’s operating permit will be the main case that he hopes will bring long-term solutions for Imperial Beach and surrounding communities, Simmons said.
At a hearing in that case in January, Simmons indicated that he’ll allow Veolia’s motion to dismiss the case while granting the environmental groups leave to amend their complaint, leaving IBWC as a defendant.
“It’s a great day for Imperial Beach,” Morris said after the hearing.
The plaintiffs are asking the court to grant them damages.
Last year, Imperial Beach residents filed a similar suit against Veolia, accusing the company of negligence, public and private nuisance, trespass and battery, health and safety law violations, and failure to comply with the permit that allows the plant to operate.
According to the residents, Veolia’s actions caused a toxic slurry that killed a bottlenose dolphin and eradicated the river’s fish population. It also led to hundreds of days of closure of city and state beaches, foul noxious odors throughout the city, and gastrointestinal diseases among residents — some who’ve ventured into the waves and others who’ve simply breathed the air, they say.
