1) John Patrick Lucas adopts the closing argument and answering brief submitted by Lehman Hot Springs, LLC and Lehman Development Corporation in defense of allegations brought by the Oregon Department of Environmental Quality. 2) The document provides a chronology of events beginning in March 2009 when Lucas was made aware the sewage ponds may be overfilling and describes actions taken to address the situation, including removing water from the ponds. 3) Lucas argues that no pollution occurred, the sewage system was repaired, and they were operating with a valid permit according to DEQ practices so the penalties sought by DEQ are unjustified.

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 closing
argument and answering brief submitted by Respondents Lehman Hot Springs, LLC
and Lehman Development Corporation.
Chronology of Events
March 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 Northeastern
Oregon. Respondent finds the site is heavily covered by snow and is unable to
ascertain the level of freeboard of the upper and lower ponds, but transfers water from
the upper lagoon to the lower lagoon so that there is more freeboard in the upper
lagoon. Respondent checks all manholes, finds what he believes to be the source of
the infiltration, and stops it. Sends pictures to DEQ and reports his activities.

2. April 8, 2009, Respondent has Steele’s Septic Services remove 12,000 gallons from the
lower lagoon which is the only lagoon that is accessible by pumper truck and deliver to
Ukiah, Oregon. (R40) Unlike Respondents sewage system, Ukiah’s system is a series
of unlined sewer ponds but they are permitted as such because they are a municipality
instead of privately owned.
April 9, 2009, Respondent has Steele’s Septic Services remove an additional 12,000
gallons 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 12,000
gallons 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 12,000
gallons 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 of
septic trucks that hold 2,000 gallons each.
April 15th, Respondent Lucas meets on site on behalf of Respondents Lehman Hot
Springs, LLC and Lehman Development Corporation with representatives from the EPA
and DEQ.

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 of
the facility should EPA feel that there was imminent danger to the environment. EPA
puts Respondent(s) on notice that they could impose a civil penalty of up to $37,500
per day. Respondent signed the agreement with EPA and delivered to Jeffrey Fowlow,
Federal On-Scene Coordinator. Because Respondent complied, EPA Jeffrey Fowlow
never 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. EPA
asks Respondents to come up with a plan of action to get the infiltration situation under
control. Respondents come up with a 12 point plan to address the concerns of EPA
and DEQ. (R10, R28) These included plugging off the sewer line to the lagoons so
that no more wastewater would be able to enter the lagoon, installing porta potties for
people to use instead of the restrooms at the resort and to remove the water from the
lagoons via pumper trucks until 2 feet of “freeboard” was achieved. The agreement
also called for daily reports from Respondent(s) engineer to the EPA and DEQ. EPA
takes water samples and sends them into the lab for analysis and assures Respondent
that they will receive a copy of the report (R31)
April 16th,
Respondent(s) engineer discover the main source of the stormwater infiltration. It was a
tee in the line between the sewer pond and the first manhole, where the flow logger was
located. The T was capped off, so not only was the sewer from the resort no longer

4. flowing into the system, the stormwater was not entering the system. Respondents
hauled 20,000 gallons from the lower lagoon on April 16th (R10,R12)
.
April 17th, 2009
A total of 5 Baker Tanks are now on site (R38) that hold a total of 100,000 gallons of
waste water that was pumped from the lower lagoon and 2 feet of freeboard was
achieved. Also per the 12 point plan, porta-potties are delivered to the lodge and
manhole maintenance and repairs begin.
April 18th, 2009
Engineering report submitted to EPA and DEQ showing the elevations of lower lagoon
showing that 2 feet of freeboard was achieved in the lower lagoon. We were therefor in
compliance 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 50,000
gallons per day from the lagoons. Additionally, Kirby reports that 7 of the 18 manholes
had been re-grouted (R10)
April 21, 2009 Kirby reports that a total of 122,000 gallons has been removed from the
lagoons since April 15th, 2009 (R10) bringing the total to 170,000 gallons removed from
the site. (R10)
April 22, 2009 All manholes have been re-grouted and an additional 49,000 gallons

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 wastewater
from the upper lagoon to the lower lagoon, as the lower lagoon had a total of 367,000
gallons removed since April 15th. Additional water had been removed prior to the
meeting on April 15th by Steeles Septic Service brining the grand total of waste removed
to 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 been
over five years since Respondent applied (R43, R44) DEQ actually has “the highest
backlog of pending permits in the nation” (R4 pg 3). In fact, in 2009 76 percent of the
over 4,000 permitted facilities in Oregon were operating without a valid permit (R4 pg
7)This permit was paid for and accepted five and a half years prior. All annual fees
were paid by Respondent (Vol. 2, Tr. 233:2-6). It is common practice for DEQ to allow
facilities to operate without a permit as long as the fees are paid and the permit
application is deemed complete. We paid all yearly permit fees and had inspections
just like thousands of other “non-licensed” facilities in Oregon and had no reason to
believe that we did not have a valid permit.

6. So, We stopped using the lagoon prior to DEQ withdrawing our permit. We were
therefor never operating without a permit. We repaired the collection system in its
entirety 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 of
water quality standards, or that Respondents actually caused pollution, and DEQ
does not need to establish these things to prove this case” (A opening brief page 3, line
11). So if the collection system was repaired, the sewer never leaked into the waters of
the 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 their
terminology 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 or
embankment. This never occurred.
The State is using this term to describe, by means of exaggeration, the fact that the
water reached the top of the liner, which it did, but in never in fact overtopped the
lagoon dikes. If it had, the DEQ would surely have supplied pictures or water samples

7. or anything they could to prove the point. Instead, they use the word overtopping to
imply 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 a
flouting 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 not
Respondents who are “flagrant” and “reckless.” DEQ is flagrantly disregarding the facts
and scientific evidence. DEQ is recklessly disregarding the rights of Respondents.
Dated October 12, 2012
John Patrick Lucas