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HomeMy WebLinkAbout05.b.1) Written Legal UpdateCentral Contra Costa Sanitary District District Counsel Update by Kenton L. Alm January 23,2014, Board Meeting This District Counsel Update briefly summarizes the issues for which legal services have been required during the last several months. There has been a somewhat typical use of District legal counsel services since the last update to the Board on August 15, 2013, and a substantial portion of these legal efforts have related to several pieces of ongoing litigation and pre - litigation activities. This summary briefly lists litigation efforts that were undertaken this year and lists several of the non - litigation issues, which have required District Counsel's services. The matters listed in this update are in addition to the day -to -day responses to staff inquiries, attendance at the weekly onsite office hours, attendance at agenda review and Board committee and formal Board meetings. 1. Litigation and Regulatory Matters. City of Brentwood, et al. v. Campbell, et al., Contra Costa Superior Court Case No. N11 -1029 • Lawsuit by public agencies, including the District, contesting the distribution of supplemental tax payments potentially owed to Chevron and due to overvaluation of the Chevron Richmond Refinery • Matter being jointly handled by Jarvis, Fay, Doporto & Gibson • Hearing /trial has been completed • Appeal by public agencies was filed • A settlement between the County and Chevron occurred • Decision whether to terminate the appeal is pending Contra Costa County Deputy Sheriffs Association, et al. v. Contra Costa County Employees Retirement Association, et al., Contra Costa Superior Court Case No. MSN 12 -1870 • Suit by member bargaining groups and unions asserting retirement revisions of AB 197 are not applicable to current employees due to vested rights • Joined as Interested Party on April 16, 2013 • Substantive motions heard in October, November and December 2013 • Briefing on objections, requests for clarification and additional pay items due by January 27. Hearing set for February 25, 2014. • Oral argument on Phase I issues, further Case Management Conference and motion to modify stay order to be heard on February 11, 2014 Heaney v. City of Walnut Creek, et al., Contra Costa Superior Court Case No. C13 -00538 • Slip and fall action generally based on allegation that maintenance hole cover constitutes a dangerous condition of public property • Complaint filed March 11, 2013 District Counsel Update January 23, 2014 Page 2 • Mediation date March 20, 2014 • Trial date November 3, 2014 River Watch 60 -Day Clean Water Act Notice • Clean Water Act citizen suit alleging collection system SSOs as violations • Matter settled and settlement agreement executed by District on January 14, 2014; Awaiting executed copy of settlement agreement from River Watch Schaeffer, et al. v. Gregory Village Partners LP, Contra Costa Superior Court Case No. MSC 11- 01307; U.S. District Court, Northern District Case No. 3:13 -cv -04359 • Dry cleaner PERC contamination lawsuit by adjacent homeowners • Primary defense of District now handled by Bassi Edlin Huie & Blum • Lawsuit formally removed to U.S. District Court on September 19, 2013 • Joint Case Management Conference statement due by January 22, 2014 • Case Management Conference set for February 5, 2014 • Discovery ongoing Water Code Section 13267 Letter Response • Demand by Regional Board to provide response to allegation of regulatory responsibility for PERC contamination at Gregory Village Mall, Pleasant Hill • Same site as Schaeffer litigation and similar environmental contamination issue • Substantial response prepared, along with expert consultant opinions and submitted to Regional Board on May 28, 2013 • Follow up analysis and supplemental draft report prepared and provided to Regional Board in December 2013 • Formal decision of Regional Board on issue of cleanup order expected during the next few months • District participation will be required to defend or object to the Regional Board's decisions on which parties should be named in a cleanup order 2. Engineering/Right -of -Way /Source Control /Construction Issues. There has been the normal, somewhat constant, flow of legal work from the Engineering Division. Over the last several months, the balance of work has shifted from support on construction matters to support of the Environmental Services Division on a variety of real property and connection fee collection issues. Right -of -way and real property related issues have included a variety of routine easement acquisition and modification issues, road maintenance issues, as well as support for the proposed sustainable farm project. In addition to the right -of- way and real property work, there has been support for the District's source control efforts, the Clean Water Inspection Program and enforcement matters such as Caffe Classico. District Counsel Update January 23, 2014 Page 3 Of course, typical construction related issues have arisen including a number of pipeline projects and the HOB seismic retrofit project. There is continuing work on legal advice to the construction specification committee and assistance has been provided with regard to both bidding and construction administration matters. Fortunately, over the last several months, there have been no major construction related legal issues or significant related contractor claims. 3. Administration. Support on administrative matters has included both the routine and the not so routine. The routine issues, of course, involve preparation for, review of materials and attendance at Board and committee meetings, as well as support on Brown Act, Public Records Act and other procedural issues. The non - routine issues have dealt with matters such as Board approval of expenditures procedures, Ca1PERS and CCCERA related issues, deferred compensation consolidation of services, installment payment plans for delinquent property owners, electronic devices use policies, confidentiality of Medicare supplement payments to retirees and participation in the staff strategic planning process. 4. Treatment Plant and Collection System. Legal support has also been provided to Plant Operations on matters relating to contracting for equipment and services, such as the Solar Turbine maintenance contract. Legal assistance has also been required to address the claim by Bulldog Gas that it may have been under paid for its landfill gas deliveries to the District. The majority of the work performed relating to Collection System Operations relates to the River Watch litigation. Substantial interfacing with staff has been required to address the issues of concern raised by River Watch and to produce sufficient documentation to address those concerns. 5. Ongoing Matters. In addition to attending to routine staff and Board attendance matters, District Counsel will continue to be available onsite one day per week. The Contra Costa County Deputy Sheriffs' Association v. CCCERA litigation matter will continue for several months and any and all decisions will likely be appealed. The Heaney matter should be brought to conclusion or be brought to trial on the date indicated. Substantial effort may be required with regard to the potential Cleanup Abatement order concerning the PERC contamination at the Gregory Village Mall. It is anticipated that any decision by the Regional Board concerning a cleanup and abatement order will be appealed and there will likely be a need for the District to participate in that process in order to continue to protect its interests. District Counsel is available to answer questions and provide further follow up individually or through additional written materials if any Board member so desires.