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Central Contra Costa Sanitary District
District Counsel Update
July 21, 2011 Board Meeting
By: Kenton L. Alm
Kenton L. Alm 5. b.
Attorney at Law
kalm @meyersnave.com
The last periodic report to the Board by District Counsel concerning legal issues was
provided on March 3, 2011. This summary attempts to briefly outline several of the issues
for which legal services have been required during the last few months. As compared with
the last several District Counsel updates, your Counsel is reporting there that there has been
a substantial increase in the need for legal services over the last several months. This
increase in legal effort has been necessitated due to litigation and risk management matters,
items relating to environmental compliance and permitting, and the convergence of a
number of administrative matters such as those related to CCCERA.
This summary first briefly lists the litigation efforts which were required in the last several
months and thereafter briefly lists several of the non - litigation issues for which your Counsel
has provided services. As is typical, the matters listed in this report are in addition to the
day -to -day responses to staff inquiries, attendance at the weekly on -site office hours, and
attendance at agenda review, Board Committee and formal Board meetings.
1. Litigation Matters
The litigation demands during this recent period have increased substantially. This increase
is due primarily to the litigation and pre - litigation efforts related to the contamination at the
Gregory Village mall in Pleasant Hill. As you are aware this has resulted in two separate
lawsuits each of which includes claims under several federal and state statutes requesting
both injunctive orders relating to cleanup and recovery of investigative and cleanup costs.
Substantial investigative efforts and expert analysis have been undertaken in addition to
initiating a complex motion practice. The intent of these efforts is to substantially narrow
the breadth of the suits and become familiar with the substantial investigative work which
has transpired over the last ten years. In addition to the Gregory Village mall activities, there
have also been efforts leading to the dismissal of the Freeman lawsuit and initiating
participation in the litigation regarding the allocation formula for collection of the tax refund
owed to Chevron.
2. Environmental and Permitting Issues
During this period, there has also been an increase in the need for services relating to
environmental and permitting issues. Legal Counsel has supported staff with regard to
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Central Contra Costa Sanitary District
District Counsel Update
July 21, 2011 Board Meeting
Page 2 of 3
several detailed and sophisticated issues including the evaluation of and response to the
sludge incinerator rulemaking process and preparation of the application for reissuance of
the NPDES Permit (the Report of Waste Discharge). Additional legal analysis and support
was required to address a hazardous materials disposal issue. This effort related to the
Moraga Pump Station and the potential enforcement concerns of County Health. Each of
these items involved somewhat technical legal review of relatively sophisticated
environmental and legal principles.
3. Administrative and Risk Management Matters
The Administrative Department also faced several challenges during this period requiring
legal support. Numerous issues relating to CCCERA and pension reform encompassed
much of the non - routine time spent on administrative matters. In addition to those related
issues, additional services were requested on more routine matters such as a teleconferencing
policy, hearing publication requirements and numerous risk management issues. The Cohen
claim and several other recent risk management challenges also required additional legal
review and input.
4. Engineering /Construction Related Issues
As is typical, there has been a constant flow of legal work emanating from matters within the
focus of Engineering Division. One of the non - typical issues dealt with the default of a
District contractor, NCCI Inc, and the negotiations with the bonding company. These
negotiations with the bonding company addressed the take over of the remaining contract
obligations and engagement of a replacement contractor. Several other matters relating to
subcontractor payment and potential insolvencies due to the current economy issues also
arisen during this period.
The Engineering Department is of course also responsible for connection fees, right -of -way
and construction permitting issues. In this category, there are several issues including the
Senro Sushi and Monsoon Marsala payment issues, a dispute arising from a home
construction project and a number of right -of -way issues.
5. Ongoing Matters
It is anticipated that substantial staff and legal resources will continue to be required over the
next six months to address the allegations contained in the Gregory Village Partners and
Schaeffer's' litigation. Both of these matters have now been filed and served, and now are in
the stage where active litigation activities will continue for the next several months. These
matters are quite complicated and will continue to require substantial legal attention. Staff
and consultant efforts will also be required.
District Counsel will of course continue to attend routine staff and Board meetings, provide
other services covered under the existing retainer agreement, and continue to provide four
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Central Contra Costa Sanitary District
District Counsel Update
July 21, 2011 Board Meeting
Page 3 of 3
hours a week of office hours. District Counsel will be available to provide other than
routine services if they are required.
Your Counsel is available to answer questions and provide further follow up individually or
through additional written materials if any Board member so desires.
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