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Closing Argument Answering Brief Lucas Lehman EQC


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This was my personal closing argument to the $532,000 fine imposed by DEQ against Lehman Hot Springs. In DEQ's response they state "DEQ has never asserted a violation of water quality standards, or that Respondents actually caused pollution" I guess they don't think press releases, posting false statements on the DEQ website, filing civil and criminal charges against me and my companies doesn't qualify as "asserted" It hasn't been fun being tried in the media, especially when they can't back it up. That's what eco-fascists do though.

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Closing Argument Answering Brief Lucas Lehman EQC

  1. 1. BEFORE THE ENVIRONMENTAL QUALITY COMMISSION STATE OF OREGON IN THE MATTER OF: CLOSING ARGUMENT - ANSWERING BRIEF OF RESPONDENT JOHN JOHN PATRICK LUCAS, LEHMAN PATRICK LUCAS DEVELOPMENT CORPORATION, and LEHMAN HOT SPRINGS, LLC, OAH Case No. 1002077 DEQ Case No. WQ/D-ER-09-082 Respondents Respondent Lucas adopts and incorporates by this reference, the closingargument and answering brief submitted by Respondents Lehman Hot Springs, LLCand Lehman Development Corporation. Chronology of EventsMarch 31, 2009 Respondent is made aware that the ponds are potentially overfilling(R7)April 2, 2009 Respondent visits the site that is in a very remote location in NortheasternOregon. Respondent finds the site is heavily covered by snow and is unable toascertain the level of freeboard of the upper and lower ponds, but transfers water fromthe upper lagoon to the lower lagoon so that there is more freeboard in the upperlagoon. Respondent checks all manholes, finds what he believes to be the source ofthe infiltration, and stops it. Sends pictures to DEQ and reports his activities.
  2. 2. April 8, 2009, Respondent has Steele’s Septic Services remove 12,000 gallons from thelower lagoon which is the only lagoon that is accessible by pumper truck and deliver toUkiah, Oregon. (R40) Unlike Respondents sewage system, Ukiah’s system is a seriesof unlined sewer ponds but they are permitted as such because they are a municipalityinstead of privately owned.April 9, 2009, Respondent has Steele’s Septic Services remove an additional 12,000gallons from the lower lagoon and deliver to Ukiah, Oregon’s unlined sewer ponds.(R40)April 10, 2009, Respondent has Steele’s Septic Service remove and additional 12,000gallons from the lower lagoon and deliver to Ukiah, Oregon’s unlined sewer ponds(R40)April 14, 2009, Respondent has Steel’s Septic Service remove and additional 12,000gallons from the lower lagoon and deliver to Ukiah, Oregon’s unlined sewer ponds(R40) The total removed to date in 2009 was therefor 48,000 gallons by means ofseptic trucks that hold 2,000 gallons each.April 15th, Respondent Lucas meets on site on behalf of Respondents Lehman HotSprings, LLC and Lehman Development Corporation with representatives from the EPAand DEQ.
  3. 3. Lucas signs full authorization, as prepared by the US Environmental Protection Agency,on behalf of Respondent Lehman Development Corporation for EPA to take control ofthe facility should EPA feel that there was imminent danger to the environment. EPAputs Respondent(s) on notice that they could impose a civil penalty of up to $37,500per day. Respondent signed the agreement with EPA and delivered to Jeffrey Fowlow,Federal On-Scene Coordinator. Because Respondent complied, EPA Jeffrey Fowlownever came back up to the site, nor did the EPA impose ANY fine against Respondent.April 15th 2009, Respondents meet onsite with EPA, Heidi Williams, and others. EPAasks Respondents to come up with a plan of action to get the infiltration situation undercontrol. Respondents come up with a 12 point plan to address the concerns of EPAand DEQ. (R10, R28) These included plugging off the sewer line to the lagoons sothat no more wastewater would be able to enter the lagoon, installing porta potties forpeople to use instead of the restrooms at the resort and to remove the water from thelagoons via pumper trucks until 2 feet of “freeboard” was achieved. The agreementalso called for daily reports from Respondent(s) engineer to the EPA and DEQ. EPAtakes water samples and sends them into the lab for analysis and assures Respondentthat they will receive a copy of the report (R31)April 16th,Respondent(s) engineer discover the main source of the stormwater infiltration. It was atee in the line between the sewer pond and the first manhole, where the flow logger waslocated. The T was capped off, so not only was the sewer from the resort no longer
  4. 4. flowing into the system, the stormwater was not entering the system. Respondentshauled 20,000 gallons from the lower lagoon on April 16th (R10,R12).April 17th, 2009A total of 5 Baker Tanks are now on site (R38) that hold a total of 100,000 gallons ofwaste water that was pumped from the lower lagoon and 2 feet of freeboard wasachieved. Also per the 12 point plan, porta-potties are delivered to the lodge andmanhole maintenance and repairs begin.April 18th, 2009Engineering report submitted to EPA and DEQ showing the elevations of lower lagoonshowing that 2 feet of freeboard was achieved in the lower lagoon. We were therefor incompliance within 3 days of our action plan on the lower lagoon. (R40)April 20th, 2009 Kirby reports that MRP Services is removing an average of 50,000gallons per day from the lagoons. Additionally, Kirby reports that 7 of the 18 manholeshad been re-grouted (R10)April 21, 2009 Kirby reports that a total of 122,000 gallons has been removed from thelagoons since April 15th, 2009 (R10) bringing the total to 170,000 gallons removed fromthe site. (R10)April 22, 2009 All manholes have been re-grouted and an additional 49,000 gallons
  5. 5. have been removed from the site on this day. (R10)April 23, 2009 MRP Services hauled 62,000 gallons from the site on this date (R10)April 24, 2009 MRP Services hauled 53,000 gallons from the site on this date (R10)April 27, 2009 Kirby email to Jeffrey Fowlow asking permission to move wastewaterfrom the upper lagoon to the lower lagoon, as the lower lagoon had a total of 367,000gallons removed since April 15th. Additional water had been removed prior to themeeting on April 15th by Steeles Septic Service brining the grand total of waste removedto 415,000 gallons. (R10, R28, R40)April 28th, 2009 DEQ Withdraws Respondents application for WPCF permit. (R8,R9)and is concerned as to how it will look to Respondent and the public since it has beenover five years since Respondent applied (R43, R44) DEQ actually has “the highestbacklog of pending permits in the nation” (R4 pg 3). In fact, in 2009 76 percent of theover 4,000 permitted facilities in Oregon were operating without a valid permit (R4 pg7)This permit was paid for and accepted five and a half years prior. All annual feeswere paid by Respondent (Vol. 2, Tr. 233:2-6). It is common practice for DEQ to allowfacilities to operate without a permit as long as the fees are paid and the permitapplication is deemed complete. We paid all yearly permit fees and had inspectionsjust like thousands of other “non-licensed” facilities in Oregon and had no reason tobelieve that we did not have a valid permit.
  6. 6. So, We stopped using the lagoon prior to DEQ withdrawing our permit. We weretherefor never operating without a permit. We repaired the collection system in itsentirety by May 14, 2009 (R47) and the collection system passed inspection (R10),prior to this DEQ imposed “civil penalty”.In the DEQ opening brief, page 3, they admit “DEQ has never asserted a violation ofwater quality standards, or that Respondents actually caused pollution, and DEQdoes not need to establish these things to prove this case” (A opening brief page 3, line11). So if the collection system was repaired, the sewer never leaked into the waters ofthe state and the Respondent was, according to DEQ practices operating with a permit,what is this all about?Because DEQ admits that pollution never occurred, they continue to segue theirterminology to give the appearance of pollution, to wit, the use of the term “overtopping”is used repeatedly.According to McGraw-Hill Science & Technology Dictionary:(civil engineering) Overtopping is defined as: The flow of water over a dam orembankment. This never occurred.The State is using this term to describe, by means of exaggeration, the fact that thewater reached the top of the liner, which it did, but in never in fact overtopped thelagoon dikes. If it had, the DEQ would surely have supplied pictures or water samples
  7. 7. or anything they could to prove the point. Instead, they use the word overtopping toimply something that simply did not happen, other than in their press releases.DEQ asserts that Respondent acted “Flagrantly” and was “Reckless”. The Merriam-Webster Dictionary defines “Flagrant” as : conspicuously offensive <flagrant errors>;especially : so obviously inconsistent with what is right or proper as to appear to be aflouting of law or morality.Merriam-Webster Definition of RECKLESS:: marked by lack of proper caution : careless of consequences.Responded acted immediately to the issues addressed as outlined above. It is notRespondents who are “flagrant” and “reckless.” DEQ is flagrantly disregarding the factsand scientific evidence. DEQ is recklessly disregarding the rights of Respondents.Dated October 12, 2012 John Patrick Lucas