HomeMy WebLinkAbout07.b.1) Written Legal Update76.))
Central Contra Costa Sanitary District
District Counsel Update
January 31, 2013 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. There has been a greater than average
need for legal services since the last update to the Board on July 5, 2012. These legal efforts
have been necessary primarily due to pending litigation, the significant efforts relating to labor
negotiations, and Board and staff transitions.
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. v. Gregory Village Partners, LP. et al. For the benefit of new Board Members,
in June 2011, plaintiff homeowners brought this action against the District as well as past
operators of dry cleaning establishments and past and present owners of other properties
located in Pleasant Hill. Plaintiffs allege that, decades ago, chlorinated solvents and other
volatile organic compounds were dumped into the District's sewer lines by third parties and
then leaked into the groundwater and soil underneath plaintiffs' property through cracks, sags,
and root penetrations in the sewer lines. Plaintiffs seek compensation for their future medical
expenses and injunctive relief to obtain cleanup of the property. The District denies the
Plaintiffs' allegations related to the District.
Since the last update was provided in July 2012, substantial activities have occurred in Schaffer.
First, the Court of Appeal ultimately denied the District's petition for writ of mandate and /or
prohibition, which challenged the State court's exercise of jurisdiction over the plaintiffs'
Resource Conservation and Recovery Act (RCRA) cause of action. In August, the District filed
a demurrer to the plaintiffs' Third Amended Complaint, upon which your counsel was able to
eliminate various causes of action alleged against the District. Claims under RCRA, public and
private nuisance, the Hazardous Substances Account Act, and dangerous condition of public
property still remain against the District. In addition, the discovery phase commenced this
summer, and your counsel has spent many hours both reviewing documents and also sorting
through and responding to often frivolous discovery demands made by plaintiffs. In October,
the plaintiffs filed a Fourth Amended Complaint, which the District answered; however another
defendant — Gregory Village Partners ( "GVP," the owner of the mall) — demurred to the RCRA
cause of action. The case was then transferred to Judge Flynn, who on January 18 upheld the
demurrer and dismissed the RCRA cause of action against GVP. Another item of note is that
Central Contra Costa Sanitary District
District Counsel Update
January 31, 2013 Board Meeting
Page 2 of 3
staff and your counsel located copies of old insurance policies and recently tendered the
District's defense and indemnity to the insurers of the District dating back to the 1960s and
1970s. As a result, an insurance company's counsel may potentially takeover defense of the
Schaffer case or be associated in as counsel for the District.
In a separate but related administrative matter, Edward Firestone, an attorney for GVP, has sent
two very lengthy and detailed letters to the Regional Water Board seeking to name the District
as a responsible party on a Cleanup and Abatement Order (which has yet to be issued). Mr.
Firestone sent his first letter in July, and your counsel spent a substantial number of hours
responding to the letter. He then sent a second letter in December. Your counsel also spent a
number of hours addressing that letter.
In addition to the Gregory Village contamination matter, work has also proceeded on the traffic
accident personal injury matter of Pimentel v. CCCSD, et al. As a refresher, this involved a minor
rear end accident between one of the District's CSO trucks and a private vehicle driven by Mr.
Pimentel. All parties have anticipated a potential settlement, however the matter is currently set
for trial this Spring and accordingly additional legal work is being undertaken including an
independent medical examination, depositions of expert witnesses and participation in a court -
ordered mediation. (This matter is calendared for a closed session at this Board meeting.)
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. The legal work has encompassed issues related to support
of. source control enforcement matters; review of the Tri-Tac MOU relating to emerging
contaminants (e.g., pyrethroids); CAD issues involving both the City of Lafayette and the El
Toyonal area; and CEQA review of the Alhambra Valley annexation. More recently, additional
time has been spent with regard to the extension of the County Quarry lease and evaluation of
future uses of the Kiewit property. Follow -up work on contracting for the Solar Turbine
Generator maintenance and repair has also been required.
3. Administration
A substantial majority of the legal expenses falling under the administrative category relate to the
negotiation and ultimate execution of the MOUs with the District's bargaining groups.
Fortunately, that effort has been concluded.
The remainder of work dealing with primarily administrative matters has proceeded at a routine
pace. This work has included revision to the Conflict of Interest Code, addressing questions of
potential conflicts of Board members, assistance in leasing the space required by the HOB
seismic project, as well as providing assistance to labor counsel with regard to employment
issues.
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Central Contra Costa Sanitary District
District Counsel Update
January 31, 2013 Board Meeting
Page 3 of 3
4. OnzoinLy Matters
It is anticipated that some staff and legal resources will continue to be required over the next six
months to address discovery and motions in the Schae�ferlitigation in State Court, even assuming
an insurance defense counsel may take over the laboring oar. The Pimentel personal injury
matter will likely be resolved through settlement or trial prior to my next semi- annual Update.
Staff and District Counsel will, of course, continue to attend routine staff and Board meetings,
and provide other services covered under the existing retainer agreement. A modified
engagement agreement will be forwarded to the Board for approval shortly to address the
increased presence of District Counsel on site and other suggested modifications. District
Counsel will be available to provide routine services as required in the interim.
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.
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