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— The administration claims that the city wasn't protecting big sewer users dishonestly. "There were legal issues that arose," says a spokesperson. The city attorney had to look at those issues and give an opinion on how to proceed. "In January of 2003 the information was stale, so there had to be an update." That's why the study was not made public until October of 2003, says the spokesperson. However, this explanation does not address most of Frye's observations.

In the Shames suit, Riley is arguing that Proposition 218 language doesn't apply. Water usage "is a commodity and not a tax that would be governed by 218," he says. "We don't bill people who live in Point Loma less because they are closer to the main pump station."

In any case, the statute of limitations in this case may be as few as 100 days -- at most, three years, says Riley. Therefore, $200 million is a ludicrous sum, he claims. He also says that usage proportionality can't be determined with exactitude.

The statute of limitations "is something that will require a judge to determine," counters Benink. He agrees that "you can never be exact on proportionality, but the city omitted an extremely important cost component: organics, and that's the focus of the suit. The city failed to charge proportionately." Legally, organic pollutants, or bacteria-laden materials that absorb oxygen from the water, cannot be excessively dumped in the ocean. Complianace costs money that hasn't been paid by the offenders. This suit attempts to rectify that.

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