click to enlarge Photo by Darwin BondGraham

The city didn't require new sewer lines for new businesses at Alameda Point.



Federal and state regulators are investigating whether the city of Alameda has violated a court-mandated sewer repair program that was designed to keep raw sewage and other pollutants from seeping into San Francisco Bay, the Express has learned.

The probe by officials with the U.S. Environmental Protection Agency and San Francisco Bay Regional Water Quality Control Board concerns the recent opening at Alameda Point of Admiral Maltings, which manufactures malt used in beer fermentation, and the Almanac Beer Company, a local brewer.

The city allowed the new businesses to open in Building 91 of the former Naval Air Station without replacing old sewer pipes, city records show. And environmentalists now worry that raw sewage from the new businesses could end up in the bay through a process known as inflow and infiltration. During heavy rains, stormwater infiltrates holes and cracks in old sewer pipes and causes overflows at collection stations. Those stations are then forced to dump the untreated waste into the bay.

Under a federal court agreement signed in 2014, the city agreed to replace sewer infrastructure in order to cut back on pollution spills. Called a consent decree, the agreement requires the city to "rehabilitate the existing sewer mains and sewer laterals in Alameda Point for any property or parcel that is developed." The consent decree also requires that this replacement work should be "a condition of the city approving any applicable city of Alameda building permits."

But according to building permits issued for Building 91 and two other recently approved projects in Alameda Point, the city did not require the replacement of sections of sewer mains connecting to the properties before greenlighting the developments. Instead, srmErnst, the company that purchased Building 91 earlier this year from the city for $2.8 million, simply redeveloped the space and leased it to Admiral Maltings and the Almanac Beer Company.

Sewage spills in the past prompted the EPA and state authorities to sue the East Bay Municipal Utility District, the city of Alameda, and other East Bay cities in 2009 to force them to repair the region's sprawling and leaky maze of sewer pipes. Several environmental groups intervened in the case and now help monitor whether cities are fixing their broken sewers fast enough.

"There's certainly a plausible contention they haven't complied," said Christopher Sproul, an environmental attorney, referring to the city of Alameda. But he said it's also possible that the city is following the rules. "The consent decree goes on for a couple hundred pages. It has elaborate requirements."

"We read it as there's a trigger for getting the lines replaced," said Baykeeper's Executive Director Sejal Choksi-Chugh. "The building permits should include rehabilitation, but it seems like the city is reading that differently, and it depends on the enforcement agency, whether they hold them accountable to that or not."

Alameda officials do have a different interpretation of the consent decree's requirements, and they contend that they haven't violated its terms. They say they have a plan and source of funding to fix the sewers, and that if there's any confusion or disagreement, it's only about when the pipes will be replaced — not whether it will happen.

"The city gets money for Alameda Point by selling the buildings and parcels," said Public Works Director Erin Smith. "Our feasibility analysis shows those sales will support replacement of the backbone infrastructure."

In other words, the city contends that it has to first sell property to developers in order to get the money needed to fix the sewers. But it will take many millions of dollars to carry out the work, and millions more to fix other infrastructure, like pipes for potable water and electrical and stormwater works.

In the meantime, developers at the Point want to make good on their investments by leasing their newly acquired properties as restaurants, breweries, labs, and offices, which means the old sewer pipes will be used in the interim to handle increased amounts of waste.

And the city can't use taxpayer dollars from its general fund to fix the sewers at Alameda Point because of a "fiscal neutrality" policy that Alameda instituted long ago that states only funds generated from redeveloping the former Naval base can be used on infrastructure there.

Smith said she believes the old Navy pipes are in good condition and can handle the amount of waste matter flowing through them in the meantime.

But not everyone agrees.

The current controversy was sparked by a series of emails sent beginning in August by a person named Jane Parson. In several emails to multiple city officials, including the city attorney, manager, public works director, mayor, and city councilmembers, Parson alleged that building permits for three projects, including for Building 91, were in violation of the consent decree because they didn't require simultaneously replacing the sewer mains the projects rely on.

Parson also alleged that stormwater runoff on the former Navy base was already inflowing into the Point's decrepit sewer system. Parson sent videos and photos to the city to back up her claims and asked why the city hadn't repaired the storm drains to prevent the inflows that can cause spills.

At first, the city dismissed Parson's claims.

Andrico Penick, Alameda's chief real estate counsel, responded to Parson in a Sept. 6 email saying that the city believed it hasn't violated the consent decree. "Requiring any single property owner or tenant to execute sewer main rehabilitation is cost prohibitive and not consistent with reasonable economic development practice," wrote Penick.

He added that it is the city's position that it can wait until it has funding to pay for a "backbone infrastructure improvement plan," which would include replacing the sewer pipes.

Penick also claimed that Parson was incorrect about stormwater runoff infiltrating the sewers that was documented in photos and videos.

But in a second response sent on Oct. 23, Penick admitted the city was wrong about stormwater runoff. "[S]taff was incorrect in their initial conclusion," he wrote, explaining that the city immediately sealed up the holes in the old sewer pipes where stormwater was flowing in.

Parson had also written to the EPA, water board, and several environmental nonprofits that were involved in the original federal lawsuit that led to the consent decree and sent them the same information. The Express obtained copies of the emails between Parson and the city and authenticated them.

San Francisco Bay Regional Water Quality Control Board officials acknowledged in an email to the Express that the agency is investigating the Alameda Point sewage line issue and is in talks with the city. "The San Francisco Bay Regional Water Quality Control Board takes compliance with the consent decree very seriously, and is actively evaluating the complaint," wrote Tim Moran of the water board. "The Regional Board hopes to resolve the matter soon, and will make public its conclusions."

EPA officials didn't respond to emails from the Express seeking comment, but Alameda Public Works Director Smith acknowledged in an interview that the city is in "direct communication" with the EPA about compliance issues raised by Parson's emails. She said, however, that the EPA hadn't told the city whether they think a violation of the consent decree occurred.

But Smith said that her department tested the sewer mains and feels confident that they can handle the level of sewage that the malt house and brewery will be pumping into them. "If there was a risk of an overflow, we would take action," said Smith. "We're aware of the mains conditions. If EPA has issues with that approach it'll be a negotiation."

There is no evidence that srmErnst and the beer companies did anything wrong in this case. The sewage issue at the Point also does not appear to be related to the recent contamination of tap water at the former base.

However, questions about the sewage consent decree follow costly delays at the Point. The city has become increasingly desperate to make progress on the massive redevelopment project there. In April, Alameda Point Partners, a consortium of developers that includes srmErnst, defaulted on its deal with Alameda to begin building 800 units of housing and infrastructure.

So, when Building 91 sold to srmErnst in July, the city issued a celebratory press release quoting City Manager Jill Keimach, who called it a "historical moment." Keimach said the sale would help pay for infrastructure at the base.

But just how soon the sewers will actually be replaced remains unknown. The city doesn't have a timeline yet. In the meantime, more buildings are likely to be sold and redeveloped, causing more sewage to flow into the old pipes.