DA clarifies lime plant issues report

By From page A1 | July 18, 2014

El Dorado County District Attorney Vern Pierson and deputy DA Jim Clinchard emphasized that their department should not be tarred with the same brush as the county’s Transportation Division and Community Development Agency with respect to the recent Grand Jury report.

A July 6 Mountain Democrat article about the report lumped the DA’s Office in with those other departments, using terms such as “ineptitude” and “inattention” and “subject to political pressure” for having failed to enforce the county’s Grading, Erosion and Sediment Ordinance.

Pierson and Clinchard, however, clarified that while the report made two vague references to the department having dismissed a four year-old case related to “illegal discharge” of toxic debris into two local waterways, there was no follow-up detail in the report that explained why the department had dismissed the case nor did the report make clear that, in fact, it had been dismissed three years before the 2014 Grand Jury was even formed.

Clinchard had explained for the earlier article that proving “criminal intent” on the part of the owner or equipment operator would be extremely difficult and not necessarily solve the toxic waste problem. He said it was not even certain that the property owner or his contractor were actually responsible for the toxic discharge, which would have added to the difficulty of prosecuting the case.

Pierson reiterated that the county’s ordinance includes a powerful tool for enforcement by administrative means that was far more appropriate than pursuing a criminal case and that was the real thrust of the jury’s report. Under the Grading, Erosion and Sediment Ordinance, the county’s Department of Transportation and Community Development Agency are authorized to go onto private property, assess that violations are occurring and arrange for cleanup or mitigation, then bill the owner for the cost and/or file a lien against the property.

Typically, criminal action comes only after all other administrative actions have been exhausted, Pierson said, and clearly, the report noted that few if any administrative remedies had even been applied let alone exhausted. He said that the jurors had fully understood the reasons for the DA’s dismissal of the case, but the report did not provide those details.

In grand jury terminology, there were no “findings or recommendations” directed at the DA’s Office in relation to non-enforcement of the Grading Ordinance, Clinchard explained during an interview at the Mountain Democrat offices Wednesday. On the other hand, the report made a number of findings and recommendations for the DOT and Community Development Agency:

Grand Jury Findings 2 and 5: “Toxic limestone waste continues to flow into adjacent waterways. Nobody is doing anything to stop it. Not the owner, not the county and not the state.” “The county did not enforce the Grading Ordinance, Title 15.14 of the County Code. It is the law. The law was not enforced.”

Grand Jury recommendations:

  1. Planning Services and DOT should explore using County Grading, Erosion, And Sediment Control Ordinance Section 15.14.410 to achieve prudent results.
  2. The county should enforce the provisions of the Grading, Erosion, and Sediment Control Ordinance, Chapter 15.14 of the County Code.

The Mountain Democrat has made several attempts to contact the Grand Jury regarding the report, however, the grand jury process does not allow jurors to comment after the report is published, Pierson said, and the jury has already been dissolved.

County departments and other entities are required to respond to the report if they have received Grand Jury “findings and recommendations.” By law they have 90 days in which to provide a formal response. Assistant Chief Administrative Officer Kim Kerr said the county would not publicly comment on the report before its official responses are due in late August or early September.

Chris Daley

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