HomeMy WebLinkAbout07.b.1) Written legal update of District Counsel Kenton L. Alm, Esq.7. b.
Central Contra Costa Sanitary District
District Counsel Update
July 5, 2012 Board Meeting
By: Kenton L. Alm
This District Counsel Update (Update) attempts to briefly summarize the issues for which legal
services have been required during the last few months. In essence, there has been a substantial
need for legal services over the last several months since the last Update was provided to the
Board on January 12, 2012. These legal efforts have been necessary due to pending litigation,
items relating to environmental compliance, the Cogen incident, the Bartle Wells report, and the
significant efforts relating to labor negotiations.
In brief, this summary first lists the litigation efforts that were required in the last several month,
and then lists several of the non - litigation issues for which your District Counsel has provided
services. As is typical, the matters listed in this Update 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 remained above average. This is primarily
due to the litigation efforts related to the contamination at the Gregory Village Mall in Pleasant
Hill in Schaeffer et al. P. Gregory Village Partners, LP. et al. Since January, the Schaffer matter has
been remanded to the State courts and demurrers to the plaintiffs' complaint have been heard
with regard to multiple issues, which include whether State courts have jurisdiction over RCRA
claims. Your counsel, together with other co- defendants in the case, have argued that RCRA
claims must only be heard in federal court. The State court judge recently ruled on the
demurrers, holding that State courts have concurrent jurisdiction over these federal matters. As
a result, a petition for writ of mandate and /or prohibition will be filed imminently with the
Court of Appeal, on behalf of the District, which challenges the State court's exercise of
jurisdiction over the plaintiffs' RCRA cause of action.
Separately, in the related federal case Gregory Village Partners, LP. v. Chevron U.S.A. et al., that case
has now been dismissed without prejudice per stipulations executed among the parties. The
federal court's Stipulation and Order dismissing the action provides that if the plaintiff files a
new complaint in federal court against any of the defendants, asserting any of the causes of
action or claims for relief alleged in the now - dismissed action, the parties agree to reinstate the
pleadings and rulings of the Court, which will be binding in the subsequent litigation.
2. Engineering/ Construction Related Issues
As is typical, there has been a constant flow of legal work emanating from matters within the
focus of the Engineering Division. One of the non - typical issues dealt with the default of a
District contractor, NCCI Inc. This matter has now ended up with the Bank initiating a
receivership for NCCI, and legal efforts were undertaken to determine the rights to the retention
under our contract. The matter is now resolved and the check is purportedly in the mail.
Central Contra Costa Sanitary District
District Counsel Update
July 5, 2012 Board Meeting
Page 2 of 2
The Cogen explosion incident and follow up investigation initially demanded substantial legal
effort. The matter is currently being handled primarily by the District's insurance carrier.
However, additional effort may be required to deal with the insurance settlement and potential
recovery of self - retention amounts and uncovered costs. District Counsel is also being provided
concerning the analysis and recovery of the potential uncollected permit fees, along with aid in
addressing a number of right -of -way and property damage issues.
District Counsel has also been required with regard to a source control enforcement matter,
recycled water project grants, initiation of several CAD's and further processing of the
Alhambra Valley annexation and environmental review. Additional legal effort has been
required on several construction bidding matters, including resolving the dispute relating to
permeable concrete at the new Collection System Operations building.
3. Administration
In addition to the typical support for the administration department, there have been non -
routine efforts required relating to the transitions of a number of senior District employees,
including the general manager, and the Director of Plant Operations. Your District Counsel has
also provided legal assistance with regard to CCCERA matters and the potential use of bond
issuance to reduce long -term District pension cost. During January and February, legal services
were required to support the District's efforts in responding to the comments from State Water
Board contractors on the new NPDES permit.
4. Ongoing Matters
It is anticipated that substantial staff and legal resources will continue to be required over the
next six months to address discovery and motions in the Schaeffer litigation in State Court.
Discovery and document production is currently occurring. Labor negotiation efforts will also
continue, although those efforts are not directly the responsibility of your District Counsel.
Staff and 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 hours a week of office hours. District Counsel will be available to provide other non -
routine services if they are required.
Your District Counsel is available to answer questions and provide further follow up individually
or through additional written materials if any Board member so desires.
1920708.2
2