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Home My WebLink About07.a. District Counsel - Written Legal Update Page 1 of 4 Item 7.a. CENTRALSAN CENTRAL CONTRA COSTA SANITARY DISTRICT January 17, 2019 TO: HONORABLE BOARD OF DIRECTORS FROM: KENTON L. ALM, DISTRICT COUNSEL SUBJECT: WRITTEN LEGAL UPDATE Attached is a written legal update from District Counsel Kenton L. Alm. ATTACHMENTS: 1. Written Legal Update as of 0 1-17-19 January 17, 2019 Regular Board Meeting Agenda Packet- Page 56 of 59 Page 2 of 4 CENTRAL SAN CONTRACENTRAL • IMHOFF PLACE, MARTINEZ, CA 94553-4392 KENTON L.ALM Attorney at Law (510)375-4571 kalm@centralsan.org Central Contra Costa Sanitary District District Counsel Update by Kenton L. Alm January 17, 2019 Board Meeting This District Counsel Update briefly summarizes the issues for which legal services have been required during the past months since the last update to the Board on February 15, 2018. This summary briefly lists litigation matters pending since the last report and several non-litigation issues requiring more than minimal routine effort. The matters listed in this update are in addition to the day-to-day responses to staff's inquiries, attendance at weekly onsite office hours, attendance at Agenda Review, Board Committee meetings, and formal Board meetings. 1. Litigation and Regulatory Matters A. The District is a party in two cases in which previous organizations have challenged AB 197, former Governor Brown's "anti-spiking" legislation, as interfering with vested rights of current CCCERA members. The status of these cases is described below. Contra Costa County Deputy Sheriff's Association, et al. v. Contra Costa County Employees' Retirement Association, et al., Contra Costa County Superior Court Case No. MSN 12-1870 • Superior Court upheld AB 197 and the unions appealed. • An appeal was filed and the District participated in that appeal process. • An appellate decision was issued on January 8, 2018. • Review by the Supreme Court was granted and all briefing, including amici briefing and responses, has been completed. No date for hearing by the Supreme Court has been set. Public Employees Union Local 1, et al. v. Contra Costa County Employees' Retirement Association, Contra Costa County Superior Court, Case No. MSN12- 1874-1221 • Petitioners' First Cause of Action was denied with prejudice; First Cause of Action was dismissed in its entirety with prejudice. • Superior Court has stayed the remainder of the action until the final appellate decision has been issued in the CCCERA case cited above. While these cases have been pending, the California Supreme Court accepted review of two other cases that may affect the two Contra Costa cases. Last year, the Court accepted review of Marin Ass'n. of Public Employees v. Marin County January 17, 2019 Regular Board Meeting Agenda Packet- Page 57 of 59 Page 3 of 4 District Counsel Update January 17,2019 Page 2 of 3 Employees' Retirement Ass'n., 2 Cal.App.5th 674 (2016), and the Cal Fire case at 7 Cal.App.Sth 115 (2016). The Cal Fire case was argued in December 2018 before the Supreme Court; however, no opinion has been issued. B. Site Cleanup Investigation, Regional Board 13267 Letter and CAOs RS-2014- 0750132 and RS-2014-0750204 • Chevron and Gregory Village served Petitions for Review in December 2014; the primary issue raised is failure of the Regional Water Quality Control Board (RWQCB)to name the District. • So long as cleanup activities continue, there remains the potential that the District could again face some regulatory involvement. • Gregory Village Partners' investigation has been delayed based on claimed financial inability; however, Chevron's investigation and remediation activities continue. • No recent correspondence has been received from the RWQCB, but periodically investigation and clean-up orders or approvals occur. C. Settle v. Contra Costa Sanitary District, Town of Moraga, Lara's Concrete, Inc., Contra Costa County Superior Court Case No. MSC 17-01691 The Settle complaint was served on the District in September 2017 alleging numerous counts against each defendant, including causes of action for inverse condemnation, trespass, nuisance, and dangerous conditions of public property against the District. All causes of action against the District relate to the alleged exfiltration of District sewers being a contributing cause of a landslide at the rear of the Settles' property. The damages occurred during the heavy rain period of February 2017 at the rear of the Settles' property adjacent to a natural creek and deep ravine. The damages are from a substantial stream bank slope failure. No settlement occurred through mediation and the matter is set for trial in May 2019. 2. Transactional General Counsel Advice During the period of this report, there has been the normal consistent demand for general advice and legal effort on projects, contracts and transactional matters. The presence of myself or Meyers Nave attorneys on site for three half-days per week has generally provided for the majority of staff legal demands. Several of the matters which have required more effort during this period include: • CASA Legislative Committee and assistance on the District's legislative efforts. • Diablo Country Club (DCC)project, including drafting of a phasing agreement and a long-term operations agreement. • Continuation of support for the BioEnergy RFI and potential P3 project for solids handling. • Review of procurement documents for the Solids Handling Project. • Legal support regarding clean air violations under new Federal 129 rules. January 17, 2019 Regular Board Meeting Agenda Packet- Page 58 of 59 Page 4 of 4 District Counsel Update January 17,2019 Page 3 of 3 • Responses to Public Record Act requests, including pending projects and streambed erosion issues in Pleasant Hill. • Support drafting and finalizing DERWA wastewater diversion agreement. • Support adoption and implementation of the alternative Uniform Public Construction Cost Accounting Act (UPCCAA) contracting procedures. • Subpoena duces tecum regarding the District's facilities adjacent to residences and park area in Pleasant Hill. • Support to Specifications Committee and Purchasing Department. • Support on headworks screening procurement issues. • Support staff in addressing environmental regulatory actions concerning HHW contractor and support on pending RFP process. • Support on rate setting issues, such as for patio dining and adjustments to commercial service categories. • Support District participation in CASA flow and loading study. • Support labor negotiation activities by Board. • Support staff on ERP procurement issues. In addition to the specific matters noted above, there have been numerous day-to-day activities in the general support of purchasing, engineering,plant operations and collection system operations. Summary Several Meyers Nave members, such as Thomas Smith, have become more familiar to staff and the District's practices. Thomas will continue to provide onsite services once a week and general support as needed. Thomas and other Meyers Nave attorneys will provide backup on both transactional and litigation matters. A near-term upturn in litigation efforts is anticipated given the pending trial date for the Settle matter. I look forward to being available to supplement the information noted in the update or answer questions as may be appropriate. January 17, 2019 Regular Board Meeting Agenda Packet- Page 59 of 59