Political Loitering: HB City Council duo proposes another sex offender law

By John Earl
Surf City Voice

On May 16 the City Council directed City Attorney Jennifer McGrath to craft an ordinance that will limit the presence in city parks and beaches of convicted sex offenders who have been released from prison.

The intended ordinance, introduced on behalf of the Orange County District Attorney by Councilmembers Matt Harper and Mayor Joe Carchio, models after a recently passed county law that bans all sex offenders from using county parks and beaches without written permission from the Orange County Sheriff’s Department and offers jail time and a $500 fine for violators.

During public comments, Deputy District Attorney Brian Fitzpatrick assured that “This will go a long way to protecting children in parks” and that it was consistent with the state’s ongoing trend to increase restrictions on the movement of sex offenders who have served their time.

“We noticed that there was a hole in the law protecting our children and that was with respect to our parks,” he said.

“Just because somebody hasn’t molested a child in the past, doesn’t mean that he won’t do it in the future as a registered sex offender,” Fitzpatrick warned, lumping all sex offenders into one category while arguably implying that the presumption of innocence—which extends from the 5th, 6th and 14th Amendments to the U.S. Constitution—is an obstacle to justice.

“Constitutionally, we have researched this [ordinance] and we have found that it would pass Constitutional muster,” Fitzpatrick said, trying to head off arguments that that the ordinance would lead to lawsuits as similar laws have in other locations. “It’s narrowly protected to tailoring places where children regularly gather.”

But neither Fitzpatrick nor his proxies Harper and Carchio mentioned what criteria would determine which offenders, if any, will receive permission to visit parks or how non-compliant offenders would be monitored. Nor did they say how much it would cost the city to maintain the program or upon what research, if any, it had been determined that it would produce any overall benefit.

Contrary to Fitzpatrick’s contention that the law passes Constitutional muster, Los Angeles Superior Court Judge Peter Espinoza ruled last November in a lawsuit brought by four registered sex offenders that the portion of Jessica’s Law that restricts released sex offenders to live more than 2,000 feet of parks and schools is unconstitutional. Enforcement of that portion of the law has been suspended by the state’s Department of Corrections.

According to the Los Angeles Times, the judge also noted LA Chief of Police Charlie Beck’s finding that the living proximity of sex offenders to schools does not determine the likelihood that a sexual offense will take place and that Jessica’s Law has forced sex offenders into the streets in droves.

That “sharp rise in homelessness rates in sex offenders on active parole in Los Angeles County actually undermines public safety,” Espinoza wrote in his 10-page legal opinion, according to the Times.

Other lawsuits have popped up around the country to challenge laws that restrict released sex offenders. Legal issues include violation of the ex post facto prohibitions in Article 1, Sections 9 and 10 of the U.S. Constitution (that a person can’t be punished twice for the same crime), First Amendment rights, and the right to public access.

Outside of the courts, cost is another issue. McGrath estimated that it would cost the city about $250,000 to defend against a lawsuit in its lower court stages, not to mention taking it all the way to the State or U.S. Supreme Court.

Critical Analysis
Predictably, Carchio and Harper were short on critical analysis and not about to challenge the Republican DA’s game plan, which offers them political capital and public image enhancement in return for their enthusiastic compliance.

True to form, Carchio took that opportunity to the limit. In a blustering speech, he referenced the brutal sex-related kidnapping and murders of five-year-old Samantha Runnion in 2002 by Alejandro Avila and 12-year-old Huntington Beach resident Robin Samsoe 23 years ago by serial-killerRodney James Alcala, then promised that “I will not sit idly by, not in this city—and not at the expense of our kids and their families.”

A bit later he reached a crescendo, declaring that “I don’t want sex offenders to think that they have the run of the city. Not in Huntington Beach. Not when I’m mayor.”

Attempting a more logical approach, Harper warned that if the city didn’t pass the proposed ordinance sex offenders, who are banned now from going to Harriet Weider Regional Park located on county land, could visit Harriet Weider City Park nearby.

“Why should it be that sex offenders are allowed in one of those parks and not the other,” Harper asked. Huntington Beach should follow suit with the county and “take steps to protect children and families,” he argued.

But neither Harper nor Carchio gave any indication how their proposed ordinance would give added protection to children and their families or why it wouldn’t make problems worse considering the known history of similar laws. Boardman, however, asked Chief of Police Ken Small for the statistics on sex offenses in city parks and what he thought of the DA’s ordinance.

There were 141 reported alleged sex crimes in the entire city in 2010, according to Small, and only six of those incidents were alleged to have taken place in city parks or beaches. Not all of the six were prosecuted and all of those reports were made by private persons, he said.

“The problem is, there is such a strong emotional appeal to this type of legislation that it’s hard to speak against it without looking or sounding stupid,” Small explained, adding that “this legislation paints a very broad brush in terms of what it prohibits.”

Illustrating the potential scope of the ordinance, Small pointed out that “Members of the council have been contacted by parents who had offenses decades ago [and] who are now raising children, who would be prohibited from going to the park.”

Small also has concerns about how the ordinance would apply to city libraries and to employees who work in the city’s parks.

Small suggested adopting an ordinance like the city of Tustin did that prohibits sex offenders from loitering (being without purpose) in the parks instead of strictly following the DA’s plan.

“That’s an ordinance that would accomplish very much the same thing without the broad prohibition that the Orange County ordinance does,” he said.

That idea set well with Councilmembers Boardman, Joe Shaw and Keith Bohr. The loitering version would allow parents who are former offenders but now law abiding citizens to go to the city’s parks, beaches and libraries with their kids “because they are there with a purpose,” Boardman said. “But it would prevent sex offenders from just loitering.”

But loitering laws have also been successfully challenged in court on Constitutional grounds because they didn’t specify what types of behaviors loitering entails. Specific behaviors that might be targeted in the city’s ordinance were not discussed by the council.

Harper, with Carchio tagging along, neither acknowledged the legal issues riding with their joint proposal nor considered the Chief’s concerns. He conceded only that the ordinance could be tailored to Huntington Beach because “there are some cases in which our facilities are a little bit different than those offered by the county.”

Without explaining the relevance of those supposed differences, Harper moved as originally planned to ask the city attorney to “draft an ordinance prohibiting registered sex offenders from entering city parks and beaches similar to that adopted by the Orange County Board of Supervisors.”

The motion passed 7 – 0.

Shawn Roselius also contributed to this story.

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Court Issues Tentative Decision For Surf City on Downtown Lawsuit

By John Earl
Surf City Voice

A Superior Court judge has issued a temporary ruling against all counts of a lawsuit challenging the city’s revisions to its Downtown Specific Plan (DTSP) approved in late 2009 and early 2010 and its environmental review of those revisions.

The lawsuit was brought by Huntington Beach Neighbors, a 2,000 member citizens’ group concerned with living conditions in the downtown area. The case had its day in court last March.

The area in question covers a patchwork of about 336 acres of downtown land extending outward from the intersection of Goldenwest Street and Pacific Coast Highway (PCH) at its north end to Beach Boulevard and PCH on the south, including the Main Street and Pier area.

In an eight page ruling filed on May 5, Judge Nancy Wieben Stock noted that “In a shotgun approach to litigation, and leaving no stone unturned, Petitioners argue that in approximately 33 categories of environmental review, the EIR process was wholly deficient.”

Neighbors had a difficult task because from the start the court assumed that “a public agency’s decision to certify the EIR is correct,” as Stock explained, and it was up to the plaintiffs to prove otherwise.

Stock ruled that the plaintiffs did not show that they first exhausted administrative remedies—part of the burden of proof; in other words, their issues were not brought up during the public hearing process.

“In not one instance in its Opening Brief has Petitioner met its burden here,” Stock wrote.

Stock eliminated some challenges forthwith, for the most part without further explanation, including the assertion that the EIR did not study the cumulative effects of other nearby projects or the DTSP’s effect on downtown aesthetics, noise, public service and land use.

The lawsuit claims that the EIR “does not review the entire action that is contemplated” and thus violated CEQA by “piecemealing” its environmental analysis.

Stock agreed with the city that specific projects that could bloom from the DTSP may require separate EIRs in the future, but that a conceptual or “program” EIR is sufficient for now.

Disputed Development Area
From Nov. 2009 through Jan. 2010 the City Council passed revisions to the DTSP that allowed increased densities downtown, resulting in a potential for more than 1.3 million additional square feet of commercial development in the area.

Those revisions were in addition to Pacific City, a moth balled mixed-use project south of Atlanta Avenue on PCH that covers 31.5 acres and, at its inception in 2004, included 512 luxury condos and a 165 room hotel/spa.

Pacific City combined with the DTSP revisions increases the amount of allowed downtown development by 375 percent over former plans, the lawsuit claims.

Finding that the previous DTSP had been maxed out, the 2006 City Council decided to super-size it, calling into question the purpose of development planning in the first place: what good is it if city councils can drastically change their master plans on nothing more than a political whim?

But those changes required public hearings and environmental review under the California Environmental Quality Act (CEQA). The city was required to study the environmental affects of the Downtown Specific Plan modifications and publish the results.

CEQA guidelines require a “sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of the environmental consequences,” according to guidelines published on the state website.

CEQA also requires decision makers, in this case the city staff, to answer concerns that are part of the administrative (public) record.

The city violated that process broadly, according to HB Neighbors, without providing reasons for its lack of environmental review. Nor did it respond to complaints that were part of the public record—despite attempts by Neighbors “to achieve reasonable, resident-friendly modifications to the DTSP.”

The lawsuit asks the court to revoke certification of the final EIR for the DTSP and all its updated project approvals.

Some key assertions of the lawsuit are:

1. The city’s EIR did not show that it examined traffic impacts for summer weekends when visitor numbers are highest;

2. Solid waste impact projections considered residential but not commercial impacts;

3. In an illegal “11th hour amendment” the city council passed a measure increasing downtown density;

4. Parking impacts were not properly considered;

5. The EIR did not adequately consider the cumulative effects of nearby projects, including Pacific City.

6. Impacts on cultural resources, including the Main Street Library, were not properly considered in the EIR.

Main Street Library
Stock’s ruling largely bypassed the most controversial downtown issue of all – what will become of the historical Main Street Library located in Triangle Park.

In that case, the lawsuit contends, the Main Street Library qualifies as an “historically significant” resource under CEQA, but the EIR does not list it as such. Nor were the impacts of the DTSP revisions upon the library examined as required.

The city’s EIR states that “specific development proposals are not contemplated for the project, including development on the library site.”

But the first revised plans allowed for replacing the library with a combination cultural arts center and tourist attraction that includes a gift shop, restaurant, and event rentals and would attract up to 400,000 visitors each year.

In response to thousands of complaints, the city revised the DTSP to provide for a “community oriented cultural activity area that encourages preservation and enhancement of the Main Street Library” rather than replacing it.

But that plan still allows a 24,660 square foot structure, three stories and 35 feet tall, for an additional 14,700 square feet that could hold a gift shop, small cafe and other retail uses – still in conflict with the city’s General Plan – changes that the lawsuit claims should have undergone environmental review.

Lacking that review, the public and city council were denied information vital to the decision making process; therefore, the EIR must be revoked, the lawsuit contends.

But Judge Stock made short work of those arguments. Regarding cumulative effects, they “were not raised at the administrative level by any person.” In any case, she added, the DTSP doesn’t propose any projects yet and any future projects will face environmental review.

Traffic Problems Dismissed
The lawsuit contends that the city’s traffic studies were methodologically flawed and that it made sure to “drastically” understate traffic impacts in its EIR.

The EIR failed to demonstrate that it had analyzed weekend traffic conditions during summer, despite acknowledging the “at-capacity conditions occurring during peak summer days, particularly on weekends.” Nor did the EIR consider the added traffic congestion from tourist buses, the lawsuit alleges.

But Judge Stock called the city’s traffic study exhaustive, encompassing 1,000 pages, and said that the plaintiffs failed to offer expert counter-analysis.

Furthermore, it is not the role of the Court to attempt scientific analysis of the city’s traffic study, Stock said.

Nor is it important “whether the studies are irrefutable or whether they could have been better, she explained. “The relevant issue is only whether the studies are sufficiently credible to be considered.”

Despite the EIR’s alleged failure to demonstrate a specific analysis of peak traffic periods, and without citing specifics herself, Stock concluded that the city’s analysis showed a “full appreciation of the summer and beach-proximity issues.”

Eleventh Hour Changes
If Stock’s traffic ruling doesn’t stretch credulity, her ruling on Plaintiff’s claim of a CEQA violation by “11th hour amendment” illuminates the thick line that often separates legality from morality.

At its Nov. 16, 2009, meeting the city council voted to reconsider revised density standards for one section of the downtown that it had approved at its Nov. 2 meeting.

The issue was placed on the Jan. 19, 2010 council agenda for discussion and a vote, but a slight of hand by Councilmember Don Hansen changed the purpose of the meeting.

Instead of considering a reduction in density, which was the intent of putting the issue on the agenda in the first place, Hansen made a surprise motion.

Previously in District 1 a site area of 25,000 square feet or greater was needed to build a 45 foot high, four-story building. Any lot less than 25,000 square feet was allowed a maximum building height of 35 feet and three stories, according to the Jan. 19 staff report.

Hansen’s motion shrunk the required square footage to 8,000 square feet, creating a huge increase in density. The council passed the motion, but nothing like his proposal was in the staff’s usual list of recommended actions or in the rest of its public report.

Nor was Hansen’s proposal based on information in the EIR, the lawsuit claims, despite having significantly changed the DTSP. And it violated the city’s General Plan. Therefore, Hansen’s DTSP revision must be denied, Plaintiffs argued.

Stock issued a harsh rebuke. The possibility of a four-story building on a 25,000 square foot “or less” lot had already been discussed in the Draft EIR, as well as in numerous staff reports, she wrote.

The same thing for building height. “[T]he EIR process was designed to reveal the outcomes of any amendments to the General Plan in this area,” she added.

Councilmember Joe Shaw called portions of the DTSP “severely flawed,” despite the court’s tentative ruling. “I think the residents of our downtown neighborhoods have spoken clearly about the plan and they’re not happy with it.”

The revised density, building heights and neighborhood uses are “out of sync and out of character” for the downtown neighborhoods, he said. “I hope that this city council or the next will address some of these issues.”

Councilmember Keith Bohr had a different view.

Citing numerous stakeholder interviews, community workshops, study sessions and public hearings held in the five years since the city council directed staff to update the DTSP, Bohr told the Voice that he is “pleased that we are finally nearing the finish line for this much needed update to our Downtown Specific Plan.”

Just how close the city is to that finish line remains to be seen. HB Neighbors spokesperson Angela Rainsberger told the Voice that her group will file objections with the court next Monday. If Stock rejects those objections the group will have 30 additional days to appeal, according to City Attorney Jennifer McGrath.

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Will the Justice Dept. Prosecute Bank of America JPMorgan, Wells Fargo for Mortgage Fraud?

The Huffington Post has revealed that a set of confidential
federal audits accuse the nation’s five largest mortgage companies of
defrauding taxpayers in their handling of foreclosures on homes
purchased with government-backed loans. The audits conclude the banks
cheated the government by overvaluing their losses on foreclosed homes
and submitting faulty and defective documents to get federal
reimbursement. According to the audit, the banks—Bank of America,
JPMorgan Chase, Wells Fargo, Citigroup and Ally Financial—violated the
False Claims Act, which protects the government from fraudulent billing.
The findings have been referred to the U.S. Department of Justice.

Viewpoint: Surf City Ideologues Reject Pension Savings, Opt for Fire Service Cuts Instead

Editor’s note: At a public meeting on March 31 City Manager Fred Wilson and Mayor Joe Carchio were asked about the city’s budget, contract negotiations with public employees unions and “unfunded liabilities” for employee pensions.

“Absolutely not. I think what they did wasn’t the right way to do things. I think that what we’ve done is to try to address the budget challenge more methodically. We’ve looked at outsourcing, but it’s on a very limited [basis], but trying to do it very inclusively with everybody at the same time. There’s been no one who’s said we need to do what Costa Mesa has done.”

Fred Wilson, when asked if any city councilmembers had suggested to him that Huntington Beach should take the same course as the city of Costa Mesa, i.e., to outsource and lay off half of its public employees.

“Probably, collectively, it’s over $100 million. That’s a big number. It sounds big and it is big, but just so you know, what that number is based on is what CalPers, which is a state agency, what they tell us it is.”

Fred Wilson, on the city’s “unfunded liabilities.”

“I think we’ve done a fair amount of contracting out. If you compare what we do to what Costa Mesa does, I think you’re going to see that a large number of services that we provide are contract services. We’re moving in that direction but we’re trying to do it more responsibly, more balanced, and not take that hard-line approach to say that this is the solution. And we’ve discovered that contracting isn’t the solution to every single one of the services that we provide.”

Fred Wilson, more on outsourcing.

“Part of the answer is that the pay difference between that Authority (Orange County Fire Authority) and our fire department isn’t much different. The real question about saving is what level of service do all of us want as residents. For example, we have, I think, seven fire stations. We respond in five minutes generally 90 percent of the time…So the solution to really balance the budget is to cut back on the local services that we are providing residents and nobody wants to do that.”

Fred Wilson when asked about outsourcing fire protection services.

“I would disagree with you completely. There’s no proposal to increase any taxes. I gave you one proposal for storm drain fees that the city council has to approve. And just to let you know, at the last meeting the city council considered an increase to our trash rate. And part of that increase was a 7 cent per month increase to cover our costs and they said no. But that direction that’s coming back to us is that they’re not prepared to increase fees. The point is, it’s symbolic. And they’re not prepared to increase fees and we’re looking at employee concessions and we’re looking at reductions in our budget…”

Fred Wilson, responding to a question about alleged city tax increases.

“The city’s not becoming insolvent. I think if you look at our three-year projections for the impacts of pension costs, the numbers are, I think, $5 million, $8 million and, I think, anther $4 million. But overall our budget is over $175 million. So, if you’re putting it into percentages, you’re talking anywhere between two to three to four percent we have to cut incrementally each year. If we can do that the next two to three years, I think that we can manage our budget with those pension costs. But far more, I think employees have to pick up the larger share of the pension costs. We’re working on those. And I think between the two approaches we’re nowhere near insolvency at all.”

Fred Wilson, when asked if any study had been done to determine at what point the city would become insolvent if it didn’t take drastic action on pension reform.

“Everyone of our employees knows what the situation is. They know. And they’re working really hard with us in being great partners in trying to make this work. Because they all know that we’re in a situation. They read the newspapers. They watch TV just like you do and just like I do. So, you know, they’re not playing hard ball. They’re trying hard to cooperate and we’ve found that they’ve been really decent about it…”

Mayor Joe Carchio, speaking about the city’s public employees unions.

By Gus Ayer
Analysis and commentary
Special to the Surf City Voice 

Is Huntington Beach following the Costa Mesa train to Crazy Town, opting for confrontation instead of common sense with their employees?

On Monday, May 2, the Huntington Beach City Council, in closed session, voted against a proposal that would save the city almost $1.3 million in pension costs over the next two years and would also create a second pension tier for future public safety employees.

On May 3, Councilmember Devin Dwyer told city employees that if they hadn’t been there very long they should start looking for another job. He also said that negotiations with the Huntington Beach Fire Department had broken down, but he was quickly corrected by the Huntington Beach Fire Association (HBFA) president, Darrin Witt, who expressed an interest in continuing to talk.

Welcome to the wonderful world of Orange County right-wing politics, where ambitious young pols like Don Hansen and Matt Harper seem poised to try to get some of the publicity that Jim Righeimer has been garnering in Costa Mesa. Term limits will open up one seat each for state Assembly, state Senate and Orange County Board of Supervisors, and the players want to be seen as pension fighters and union busters to appeal to the hard core of Republican primary voters.  

As Mayor Pro Tem Don Hansen said on his Facebook page during the last city council election: 

“Let’s take our city back! If you see a police car or fire truck on the mail – that’s code for ‘union owned.’ We need taxpayer advocates not union puppets now more than ever!”

Mailers supporting Hansen’s endorsed candidates echoed the attacks on public safety employees and their pensions.

After three months of bargaining, HBFA members thought they had a deal that would save Huntington Beach $640,000 a year for the next two years. The proposed side letter to their existing agreement would also change the retirement formula for new hires in order to lower pension costs in the future. After three months of negotiations with staff, Witt felt that “We had met all of the council’s goals set out in the strategic planning session at the beginning of the year.”

Instead of taking two scheduled 2 percent raises, one of which had already been postponed for 18 months, sworn fire officers would apply that money to their pensions thus increasing their pension contribution from 2.25 percent of their income to 6.75 percent of their income.

In return, the firefighters asked for guaranteed staffing levels so that they wouldn’t have to cut the number of paramedics and engine companies that were available to respond to emergencies.  

As the council kept moving the goalposts, the paramedics and fire fighters included a budget trigger which would void the guaranteed staffing levels if revenues drop, expenses rise unexpectedly or if CalPERS increases pension rates.

Monday, May 2, in closed session, the Huntington Beach City Council voted against the savings, moving instead toward further service cuts that would increase response times.

Cutting the budget could mean service cuts that might idle one of the eight paramedic engines or one of the two ladder trucks. Budget cuts could also reduce availability of one of the cross-staffed specialized engines.

Do you cut one of the paramedic engines that respond to over 12,000 (911) medical calls a year? Or do you leave partially idle one of the two ladder trucks that have the ability to put firemen at roof level and carry additional equipment like the “Jaws of Life”?

Even without more personnel cuts to HB Fire, the annexation of Sunset Beach, coupled with fewer available units for mutual aid in surrounding cities, will put pressure on response times in Huntington Beach. The HBFD has already cut six full-time employees, including a battalion Chief, after the city’s revenues dropped substantially during the Great Recession.  

In neighboring Costa Mesa, Mayor Pro Tem Jim Righeimer pushes the party line with staunch ideologue Steve Mensinger at his side and a bumbling mayor following along. Their hasty decision to issue layoffs to half the city has made Costa Mesa a laboratory for right wing political experiments in California. The result is clear: the continued exodus of police officers, firefighters and managers is crippling the city.

In Huntington Beach, it’s Mayor Pro Tem Don Hansen calling the shots, with Republican Central Committee member Matt Harper, and former Central Committee member Devin Dwyer as comrades. All three are close allies of party boss Scott Baugh, a lobbyist and perennial meddler in Huntington Beach politics.  Joe Carchio plays the role of the bumbling mayor whose deal to accept that office a year ahead of schedule has been repeatedly questioned.

Don Hansen, his Red County buddy Chip Hanlon, and their Tea Party allies were big losers in the 2010 election. Two Team-Hansen candidates who hired Hansen’s wife’s consulting business, Red Zone Strategies, lost in the 2010 election. Measure O, a ballot initiative that would have shifted money away from public safety, also lost decisively.

At the core are Hansen, Harper, and Dwyer, who have walked away from the deal that would reduce the city’s current and future pension costs, forcing service cuts instead of compromise.

Councilmember Joe Shaw, elected in 2010 without support from the fire union, refused to comment on what happened during closed session but indicated that he strongly supported the recommendations of the city’s pension consultant, John Bartel.

“We hired an expert who recommended that we work towards a second, lower pension tier for all new hires and move toward getting employees to pick up a greater share of their pensions while holding salaries down. That is exactly what the Fire Association proposed, and it could have been a model for our negotiations with all of our employees,” he said.

The public needs to see this choice debated in public, not hidden behind closed doors. Writing at Chip Hanlon’s Red County, Don Hansen seemed to agree as he expressed his love for country music. 

One effective strategy is to adopt a set of financial policies that would be debated publicly. These policies would set the parameters for labor negotiations. For example, you could adopt a policy that says “The goal of all labor negotiations will be to increase the employee’s contribution to pension costs.”  

 In Huntington Beach, the city recently gave direction to negotiate the elimination of pending salary increases by the end of February. Taking a public vote in a meeting keenly observed by many of the union leaders sends a signal that there is a solid vote for such a solution.

By setting a more transparent policy goal prior to the commencement of labor negotiations, elected officials become more accountable for the ultimate result. Further, if your community leaders are not committed to fiscally sustainable labor policy their position will be publicly vetted as well. The economic consequences of these decisions are too great to allow them to be hidden.

Because no one knows what goes on behind closed doors.

There are three simple questions for the councilmembers who rejected the fire union’s concessions:

1)      What policy are you advancing by refusing exactly the type of pension reform that your own expert recommends?

2)      When are you going to have the public debate on whether the residents and business owners in Huntington Beach want to sacrifice response times for your ideology or not?

3)      Are you looking for sustainable budget solutions or just pandering to Republican primary voters so you can get some of the attention that Jim Righeimer has been hogging?

Photo: L – R: Don Hansen, Matt Harper, Devin Dwyer. Courtesty of Calitics

Gus Ayers is a former mayor of Fountain Valley. He writes for Calitics, where this column was originally published. Huntington Beach Councilmembers Hansen, Harper and Dwyer have been invited by the Surf City Voice to respond to Ayers.

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The Poop on Biosolids: OC Sanitation District garners awards and fierce criticism

By Sarah (Steve) Mosko
Special to the Surf City Voice

People flush the toilet maybe five to 10 times a day. Ever wonder where it all goes and, once it gets there, what they do with it?

On a per capita basis, Orange County homes, businesses and industry together generate over 80 gallons per day of raw sewage from toilet flushing, bathing, housekeeping and discharging industrial waste into drains. Most of us care not to think about sewage once it’s out of sight.

However, thinking about sewage, and what best do with it, is exactly what the Orange County Sanitation District (OCSD) does.

OCSD serves 21 cities with a total population of 2.5 million and in 2010 treated an average daily sewage inflow of 208 million gallons, enough to fill Angel stadium nearly three times. Its Biosolids Management Program (BMP), which converts the solid components of sewage into either soil amendments or fuel, has recently won awards for innovation and environmental stewardship but has also elicited opposition from parties claiming it is unsafe for both people and the environment because of the contaminants still present.

What are biosolids?
Everything flushed or washed down the drain in north and central OC is piped to one of two wastewater treatment plants, one in Huntington Beach and the other in Fountain Valley. There, much of the water is separated from the solids and treated to reduce disease-causing pathogens before being discharged five miles offshore into the Pacific. Since 2008, a portion of the water is purified further by reverse osmosis – to exceed drinking water standards – and then released into percolation ponds in Anaheim to replenish local groundwater supplies.

The solid materials left behind are referred to as sewage sludge and form a black slurry with a consistency of watery mud.

In the 1980s, OCSD disposed of sewage sludge primarily at landfills in Newport Beach and West Covina. The BMP was conceived as a means to put sewage sludge to better uses through recycling and helping municipalities meet state-mandated limits on materials discarded at landfills.

Biosolids after treatment

Biosolids are sewage sludge which has been “stabilized” to reduce odors and pathogens and turned into marketable products. Stabilization takes 20-25 days during which the sludge is incubated in enclosed vessels at 98°F where anaerobic bacteria do the work of breaking it down. OCSD boasts that the methane gas produced as a byproduct fuels 60 percent of the treatment plants’ operations.

The resulting biosolids are what the U.S. Environmental Protection Agency (EPA) defines as ‘Class B’ in which 99 percent of pathogens are presumably eliminated. OCSD describes these biosolids as a nutrient rich, organic product which can be recycled as is on agricultural lands to improve crop yields or processed further either into an earth-like composting material for fertilizing home and commercial gardens or into a renewable energy source. Residual pathogens in Class B biosolids are primarily intestinal bacteria, viruses, and parasites which, if applied to land, are expected to die off from exposure to heat, sunlight and soil microbes during mandated waiting periods before grazing or harvesting of crops is permitted.

OCSD touts that, since 2008, the BMP has met its goal of 100 percent beneficial reuse of biosolids so that none has gone to landfill. On average, 685 wet tons of biosolids were produced daily in 2010, all of which was trucked to one of three out-of-the-area biosolids contractors for further processing and/or distribution.

Thirty nine percent went to a composting facility in south Kern County, owned and operated by Synagro Technologies, where biosolids are composted with wood chips in a process requiring 40-45 days. Composting reduces much of the ammonia smell characteristic of biosolids, and the temperatures reached are thought to eliminate residual disease-causing microbes so that the compost meets EPA ‘Class A’ biosolids standards allowing unrestricted land application, including for human food crops.

About 75 percent of Synagro’s compost is spread on agricultural land in Kern County used for growing animal feed (a local ordinance prohibits use for human food crops), and the rest is sold on the landscape market.

By a process of heat and pressure, a Rialto plant owned by EnerTech Environmental converted another eight percent of OCSD’s biosolids into charcoal-like fuel pellets which can replace coal in cement kilns and thereby reduce greenhouse gas emissions. The pellets produce twice the energy used to make them. The facility began operations in 2009 and is the first of its kind in the nation.

However, the largest fraction of biosolids, 54 percent, remained as Class B biosolids applied to land for growing hay in Yuma County, Arizona. OCSD has been forced to look out of state for land recycling of Class B biosolids because ordinances banning this practice have spread within California.

Class B biosolids are not being utilized on Orange County lands because, according to OCSD spokesperson Sonja Morgan, the county is already so built up that agricultural opportunities are scarce. However, to foster public acceptance of the Class A compost, a few truckloads have been applied to garden areas at the Huntington Beach wastewater treatment facility and to baseball and soccer fields at a new recreation center in Fountain Valley.

In 2003, OCSD became the first wastewater agency in the nation to be certified for its BMP by the National Biosolids Partnership, a non-profit coalition of water quality organizations that recognizes biosolids programs for sustainable management practices that go beyond regulatory compliance.

The BMP accrued additional prestige via awards earned last year by the Synagro composting facility. The “Composter of the Year Award” was bestowed by the United States Composting Council for moving the industry forward through environmentally sound business and recycling strategies. The California Department of Resources Recycling and Recovery recognized Synagro with its WRAP (Waste Reduction Annual Program) award for recycling over 800 million pounds of organic material.

Are biosolids safe?
Despite such accolades, to say that not everyone is thrilled about what OCSD is doing with its sewage waste would be an understatement.

In 2006, a whopping 83 percent of Kern County voters passed an “anti-sludge ordinance” (Measure E) to prevent southern California jurisdictions from dumping their composted biosolids in Kern County. This gesture reflected concerns about threats to human health and groundwater and local resentment that the practice had been going on for a decade. A representative of the County Counsel of Kern County said that little animal feed crop is being grown on the land, implying it is being used primarily as a dumping ground.

Biosolids dispersed on farms
Treated biosolids used for agriculture. Photo: Environ. Sci. Technol.

Implementation of Measure E has been delayed by battles in federal and most recently state court, led by the City of Los Angeles which also uses Kern County lands for recycling biosolids. If Kern County prevails, county supervisors have given notice that Measure E will be implemented in October. Either way, OCSD plans to continue sending biosolids to Synagro whose problem it would be to locate other markets for its compost.

Another stink over biosolids erupted in 2009 in San Francisco when “organic compost,” given away for free to the public by the Public Utilities Commission, tested positive for several endocrine-disrupting chemicals including flame retardants and triclosan, an anti-bacterial agent. The giveaway is now on temporary hold, and Food Rights Network, a nonprofit research group that oversaw the testing, has called for a permanent end to the program which it accuses of using home gardens as a dumping ground for the sewage waste industry.

In general, controversy over the wisdom of recycling biosolids on farmland and gardens has heated up following release in 2009 of results of an EPA survey in which biosolids from water treatment agencies in 35 states were tested for 145 chemical residues. Every sample contained, at minimum, a host of different flame retardants, heavy metals and pharmaceuticals.

The EPA report did not comment on what the implications might be for the safety of applying biosolids to home gardens or lands used for crops or grazing. However, the Organic Consumers Association (OCA), a non-profit group which advocates for organic standards, has launched a campaign against all such practices, emphasizing that biosolids are regulated by the EPA only for levels of pathogens and certain heavy metals. The regulations do not cover the wide spectrum of other chemical pollutants found in biosolids.

Furthermore, the levels of toxic heavy metals allowed by the EPA are the least restrictive among industrialized nations.

Both the OCA and Food Rights Network take issue with the fact that no laws require any labeling to inform consumers when compost is derived from sewage sludge and might contain contaminants. They want the public to know that the term biosolids was coined in a 1991 contest orchestrated by the Water Environment Federation – an association of water quality professionals – to find a marketable euphemism for sewage sludge.

Adding to the controversy about biosolids, very little is yet known about the extent to which contaminants from biosolids might build up in soil over time or enter the food chain. However, red flags have been raised by studies published in recent months by researchers at the Colorado School of Mines.

In one of those studies, higher levels of PFCs or perfluorochemicals were measured in soils amended with the most biosolids, raising concerns because PFCs are known to persist in the environment and bioaccumulate. Another study found evidence for bioaccumulation of antimicrobial chemicals in earthworms living in biosolid-amended soil, suggesting biosolids might alter soil ecosystems.

Furthermore, articles recently appearing in the New York Times outlined concerns raised by federal regulators that radioactive waste from drilling for natural gas is turning up in wastewater and could end up on farmlands treated with biosolids.

The OCA suggests that consumers concerned about the impact of biosolids on food safety should seek out foods labeled “USDA Organic” because, since 1998, organic standards have prohibited use of sewage sludge as fertilizer in food production.

The OCA and the Food Rights Network are among the more strident opponents of biosolids recycling programs who want all sewage sludge handled as toxic waste and contained for disposal, which would mean a return to landfilling or even incineration. Others have called for more nuanced approaches.

In a 2003-2004 report, the Orange County Grand Jury recommended that OCSD phase out Class B land-application programs and upgrade all biosolids to Class A.

Congressman Jose Serrano of New York has recently introduced federal legislation that would prohibit grazing or growing crops and animal feed for a full year on land spread with biosolids and would require any foods grown on such land be labeled as such (HR 254).

The Sierra Club’s recommendations include tightening restrictions on allowable contaminants and creating buffer zones around treated fields to protect nearby residents from airborne contaminants.

Whatever future tacks the OCSD might take to improve on the sustainability of its program for managing sewage waste, homeowners, businesses and industry also must move beyond “out of sight out, out of mind” and give due attention to the toxicity of what is being flushed down drains and in whose backyard that waste ends up. OCSD’s ongoing “No Drugs Down the Drain” public education campaign is meant to foster such awareness.

Perhaps a debate over the safety of recycling sewage waste is just the wakeup call America needs to force it to rethink the reckless approach to chemicals regulation which has allowed some 80,000 chemicals into commerce, most without any health or environmental safety testing let alone plans for how to best handle the tainted sewage that results.

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Please Support Your Local Buskers: Without them, Surf City Nights would be a duller event

By John Earl
Surf City Voice

Every Tuesday night from 5 – 9 pm you can visit downtown Huntington Beach on Main Street and be entertained by the buskers who perform for Surf City Nights, the city’s weekly street fair.

Buskers are people who make their living by performing for you on streets, sidewalks, subways, parks and other public places. In Huntington Beach, you’re most likely to find buskers in the downtown area, on any given day, but especially on Tuesday evenings at Surf City Nights.

Buskers have a proud tradition, mostly. Some great buskers in history include Benjamin Franklin, Woody Guthrie, Joan Baez, B.B. King, Janis Joplin, the Grateful Dead, Jefferson Airplane and Jimi Hendrix, to name a few.

Musicians probably make up the majority of buskers at Surf City Nights, but since it started four-years-ago there have been Russian acrobats, break dancers, the guy who rides the highest unicycle in the world, magicians, tap dancers, bubble makers, mimes, human cars and people who juggle lit torches, bowling balls and long knives.

Wikipedia tells us that there are buskers all over the world, that their name has Spanish roots (“buscar” means “to seek”), and that busking dates back at least to ancient Rome where street performances were governed by “The Law of the Twelve Tables,” which demanded the death penalty for buskers who dared to satirize government officials.

Surf City Nights buskers are governed primarily by the rules of the Advisory Board of the Downtown Business Improvement District (BID), a collection of downtown merchants.

The BID isn’t as strict on buskers as was ancient Rome, but you have to follow its somewhat arbitrary rules if you want to busk at Surf City Nights. Would-be buskers can’t just show up on Main Street on Tuesday evening and start performing. They must first apply and audition for the BID. If approved, the busker will be assigned a time and place to play.

Warning: buskers who sing happily about pot will be banned for life, but Irish bands that happily glorify getting shit-faced drunk (a perfect fit for downtown on any other night) are welcome back anytime.

Photo: Wikipedia Commons

Other than that, Surf City Nights rules for buskers are pretty sensible and simple—compared to Santa Monica’s Third Street Promenade, which is the busker capital of southern California. There the city runs the (daily) show and the rules are stricter and more complicated. Buskers rotate on a first-come first-serve basis and city inspectors use sound measuring tools to ensure that buskers don’t get too loud.

Without its buskers, Surf City Nights would be a much duller event, just another outdoor market. Buskers created a night (or four hours to be more exact) of entertainment downtown that never existed before—minus the drunks that stagger out of the bars and head back to their cars on any busy night.

For all its charms, busking full time is clearly a lifestyle choice that nobody should select without careful forethought.

Busking is hard work and it takes great determination and talent to even modestly succeed at it.

Buskers depend on “donations” from the crowds they draw in order to buy food, pay bills and fill the gas tank for their return trip home.

The acrobats, break dancers, tap dancers, unicyclists, and magician buskers, who gather the crowds for regularly scheduled shows, usually pass the hat around to collect money; first, as they build up the excitement and expectations of the audience and then after their big finale, which might be juggling bowling pins while riding the world’s tallest unicycle (over 15 feet) or somersaulting over a row of 10 people bent at the waist.

Musician buskers, who usually sing continuously save for short breaks, often leave their money basket, jar, bucket or open guitar case in front of them on a table or the ground to collect donations from passersby. Sometimes they offer self-made CDs in return for larger donations.

Some buskers use “pitchers,” people who go out into the audience proactively soliciting donations or signing up fans for future notices.

Buskers usually don’t like to tell reporters how much money they make for their work. They fear that if the public finds out that they can make several hundred dollars in one night it might cut back on donations.

But a busker who makes $300 at one Surf City Nights event might make only $40 another time. He or she might not be able to find a good location to work at on the other days of the week. That $300 might be all there is to live on for the week.

It’s a story that Eric Kufs, a Surf City Nights mainstay since its inception four years ago, cleverly, self-mockingly, and at times sardonically, weaves into his songs as he pleads for donations.

While casually strumming his way through a modified version of Paul Simon’s song, “Diamonds on the Soles of Her Shoes,” he sings about his life-altering decision to move from New York to Los Angeles to become a folk singer.

People say I’m crazy because I’ve got diamonds on the souls of my shoes.
They say I’m crazy for many other things too.
Like singing out here on the street for all of you.

Most buskers don’t end up with careers like Hendrix or B.B. King, or Ben Franklin for that matter, but many of them are accomplished performers, some of whom deserve the fame and fortune that has alluded them so far.

But the road to commercial success, much less stardom, is fraught with struggles. Kufs had to work several other jobs, including being a bouncer and a barista at Starbucks (which he ridicules in his music), just to survive before he was able to make a living solely by performing music.

You will be paid
You will be paid
All your conflict and trouble will be repaid
Don’t be afraid
Put your faith in the hands of the union maid
When you’re lost at sea
You’ll hear the sweet melody…

–From “Union Maid,” by Eric Kufs, based on his attempt to unionize buskers.

Kufs got the folk-singing bug when he was 12 or 13. “I needed a reason to just go sit alone in my room and not talk to anybody,” he recalls.

Kufs is, without doubt, the most talented and accomplished folk singer—out of many—who have played Surf City Nights. He also plays regularly at the Third Street Promenade and at private and public gigs across the country with his equally eclectic band, Common Rotation.

Kufs is a true original. He writes his own songs, which he describes as “sort of morose.” But they are actually lyrical, catchy, poetic, blues sung with an incredible countertenor voice that he can make sound exactly like a trumpet when he sings standards like “Hard Times” by Ray Charles.

“It’s folk music,” Kufs says of his own material. “You know, a little bit of pop in there. But it’s folk music. I’ve got a lot of songs without bridges, you know. When you don’t have a bridge, it’s a folk song.”

Eric Kufs and Chelsea Williams, playing on Third Street Promenade in Santa Monica, 2008. Photo: Courtesy Eric Kufs

Kuf’s incomparable voice and guitar playing allow him to sing everything from pop hits like “You’ve Got a Friend” to folk classics like the uncensored version of Woody Guthrie’s “This Land is Your Land” with honest and heart-felt panache.

Kufs doesn’t draw the larger crowds that some of the bands or other singers do. Pop singer Adam Ho, another Surf City Nights mainstay with star potential, and Seis Cuerdas, the dynamic classical/flamenco guitar duo from Argentina, often draw a large circle of spectators as they spectacularly slash their way through dazzling guitar riffs.

But Kufs lures his audience a few at a time as they stand in line for food or stroll by. Using pop standards and his self-deprecating wit as the bait, Kufs sometimes throws in one of his original songs after his small group of listeners is hooked or just at random.

A small group, college age, are listening as they wait in line with other people to buy kettle corn where Kufs is playing – at the junction of Main Street and Pacific Coast Highway, just across from the pier. He just finished singing one of his own songs and says, with his usual refrain, “Thank you ladies and gentlemen. My name is Eric Kufs. That’s one of my songs. I have CDs and a tip jar. Please support local music. Thank you.”

One of the youths asks him to play something by Boston.

“I can’t even tell you what’s a good Boston song,” Kufs laughs.

“Play some Journey,” the same youth asks, singing the words, “Take the midnight train.”

It’s a song much better suited for pop specialist Adam Ho, not a folk singer, but Kufs plays along, singing the lyrics, “just a small town girl,” in an exaggeratedly high voice. “That’s not me,” he laughs. “That’s not my voice.”

“Do your own rendition of it.”

“Uh, yeah! I’ll just whip that up right now,” Kufs jokes. “I’ll whip up the version of that tune that’s better than Steve Perry’s. Yeah, great!”

But Kufs skillfully continues to engage them. “People come up to me on the street and say, ‘Yo Dawg, that last song was pitchy.’ I’m like, ‘You guys are totally ruining busking.’”

His listeners laugh and ask for some Andy Garcia, another request that doesn’t suit Kuf’s style or repertoire. But he leaps into an hilarious imitation of a Garcia song for a bit, then stops.

His tiny audience laughs and applauds enthusiastically, but Kufs tells them “That’s enough” and goes into a satirical song about American Idol.

“I hate that show,” he says. The song is catchy, hard hitting and funny, reminiscent of Phil Ochs, but his young audience, having already tipped him, is mostly oblivious and starts to drift away.

On a cold winter night last year I filmed Kufs singing a set of his own songs at the exact same location where he had been bantering with the Journey fans. We met before prime time in order to minimize the financial loss that he would take by not singing his array of well-known pop/folk standards.

“It’s kind of funny,” he says about half-way through the set. “You know, I can’t make a dollar unless I play a song that people know.”

By playing his own songs, however, Kufs reveals a much higher level of talent that, given the right break, could take him off the streets forever.

I don’t want to die alone
A last resort
Or a bag of bones
I will serve my time and then I will come for you


You were born with a face that I’d never seen
And a head too strong to ever know what I mean

I had watched him perform a handful of his own songs to perfection when he cut the next one short. It was time to start making money by singing the songs that people knew. Noting the obvious conflict between art and commercial success, I asked him how he decided to be a folk singer in the first place.

“I used to write pop songs that I thought people would like,” he explained. “But then I only started doing anything interesting when I started doing what I liked to listen to. So, this is what happened. This is what became of that experiment.”

“Anyway,” he added, “this is a song called ‘Bitter Honey.’”

Then he whispered, “This will be my last one.”

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