If San Diego is eventually forced to build a multi-billion-dollar secondary sewage treatment system, the legal mandate for such an undertaking will be found in Federal Judge Paudi Brewster’s ruling on March 28. After an eight-week trial on the issue of whether the city should be penalized for its dismal record of sewage spills and noncompliance with the Federal Clean Water Act, Brewster found, among other things, that the city’s dumping of treated sewage into the ocean constituted a health risk to divers in the Point Loma kelp beds. This public health factor, he wrote, “is the most significant to the court,” overshadowing the decline in starfish population near the end of the outfall pipe and more important than the debatable effects the treated effluent is having on the southern portion of the kelp bed. Brewster fined the city $3 million and harshly criticized its dithering political leadership.
Brewster’s contention that diving in the kelp is a health risk may have a basis in law, but its basis in physical reality is virtually nonexistent. No sick divers were presented at the trial, and testimony from scientists who’ve conducted more than 17,000 dives in the most bacteria-laden sections of the kelp bed asserted that not a single diver of theirs had become ill. “There simply is no evidence of diver illness in the kelp beds,” insists Paul Drayton, a marine biologist with the Scripps Institution of Oceanography who has studied the Point Loma kelp forests for the last 20 years. Mia Tegner, a Scripps research biologist who runs a diving program in the kelp bed, also testified at the trial. “If anybody should get sick, it would be us,” she explains, pointing out that her divers work in the areas of the kelp bed with the highest coliform bacteria counts. “I really worry about my own health and that of my divers. I look for illness related to diving near the outfall – and it’s just not there.” Tegner says that after she read Brewster’s decision she wondered, “Was I at the same trial?”
Since sick divers don’t seem to exist, the plaintiffs in the case, the Environmental Protection Agency and the Sierra Club, had to rely on a 1986 survey of divers conducted by consultants for the City of San Diego. This known as the Conway Study, named after San Diego State University Professor John B. Conway, the lead investigator. The survey – not a formal health study – found that out of 1024 dives performed by 316 divers, there were 8 reports of illness that might be attributable to the effluent from the outfall. The survey emphasizes that “these symptoms were reported by the divers and were not checked for validity.” It concludes that the approximately 8 illnesses (primarily vomiting and fever) per 1000 dives is well below EPA standards of 19 allowable illnesses per 1000 swimmers.
In trial testimony, it became a battle of the experts on the plane of theory, conjecture, and abstraction. The plaintiffs’ experts argued that, given the number of diver illnesses concentrated near the outfall, if those numbers were projected out on the basis of 1000 dives in that area, the number of illnesses exceeded 19 per 1000. The plaintiffs also used the imminent treatment of 13 million gallons a day of Tijuana’s sewage at the Point Loma sewage plant as a kind of scare tactic, the implication being that the Third World waste was particularly dangerous. Brewster specifically cited this point in his ruling.
Robert Simmons, the Sierra Club’s attorney, acknowledges that “there aren’t a whole lot of documented reports of (diver) illness. But there’s one huge suspicion. There was testimony that bacterial and viral levels in the kelp bed are probably much greater than the city tests show.” As for the Scripps scientists, Simmons declares that Drayton and Tegner came to the trial “with one aim: that the city ought not to be compelled to upgrade its sewage treatment.” He claims that other Scripps scientists are in disagreement with them. “You’re not going to find a whole lot of sick divers who can point to the kelp beds as the source of their illness,” Simmons continues, “but the evidence strongly supports the judge’s decision. He has to consider future increases in the amount of sewage being treated.”
In a related decision last week, Brewster ruled that signs be posted in dive shops warning of potential danger from diving in the Point Loma kelp beds. Paul Drayton of Scripps can only shake his head. He believes the Sierra Club was on the wrong side in the case, because the sludge left over from increased sewage treatment is a much more serious environmental threat than what’s happening in the kelp bed. “The irony of it is, in the environment, which is so complicated, you can’t have a black-and-white case. But the sewage outfall and the kelp bed is almost black and white. The effluent is hurting neither the divers nor the kelp.”