HomeMy WebLinkAboutRegional Water Quality Control Board; 2008-09-10;IDC
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
ADMINISTRATIVE CIVIL LIABILITY
COMPLAINT NO. R9-2007-0099
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE ("Agreement") is made
and entered into effective September 10,2008, by and between the City of Vista, the
City of Carlsbad and the Prosecution Team ("Prosecution Team") of the California
Regional Water Quality Control Board, San Diego Region ("Regional Board")
(collectively, the "Parties") with reference to the following facts:
RECITALS:
A. On September 28, 2007, the Assistant Executive Officer of the Regional Board
issued Administrative Civil Liability Complaint No. R9-2007-0099 (the "Complaint"),
which sought to impose an Administrative Civil Liability order on the Cities of Vista and
Carlsbad for a discharge of sewage from their collection system into the Buena Vista
Lagoon that occurred on or about March 31, 2007.
B. The Parties, through their respective representatives, have reached a proposed
settlement that includes the issuance of an Administrative Civil Liability Order for the
discharge from the Cities' collection system, as described in ACL Complaint No. R9-
2007-0099, attached hereto as Exhibit A. The Parties have agreed to present the
proposed Administrative Civil Liability, Order No. R9-2008-0072, to the Regional Board
for adoption at its September 10, 2008, meeting following the required public notice.
C. The terms of the proposed settlement are that the Cities will jointly pay a total
assessment of $1,095,000, which shall include the following:
a. The amount of $200,000 is due to the State Water Resources Control
Board (State' Bo$rd)Tfor deposit into the Waste Discharge Permit Fund
' Abaterrieht Account, this payment is to be paid by the Cities withiri>30
days of the adoption of Order No. R9-2008-0072; and
b. The amount of $895,000 is due to the National Fish and Wildlife
Foundation for deposit into the Buena Vista Lagoon Restoration Project
Incident Specific Subaccount of the Environmental Fund for Habitat and
Incident Specific Restoration Projects as a Supplemental Environmental
Project (SEP). This payment is to be paid by the Cities within 30 days of
the adoption of Order No. R9-2008-0072. The SEP entitled "Buena Vista
Lagoon Ecological Reserve Restoration Engineering Studies & Analysis
and Buena Vista Creek Ecological Reserve Habitation Restoration" is
more fully detailed and attached as Exhibit B, California Regional Water
Quality Control Board, San Diego Region, Supplemental Environmental
b
Settlement Agreement & Mutual Release 2 September 10, 2008
ACL Complaint No. R9-2007-0099
Project Application Form.
D. As a material condition of this Agreement, the Cities represent and warrant that the
contributions to the projects that would serve as SEPs under this Agreement are not
and were not previously being contemplated, in whole or in part, by the Cities for any
purpose other than to partially satisfy the Cities obligations in settling the discharges set
forth in the ACL Complaint, and that the Cities contributions to the projects that serve as
SEPs would not be made in the absence of this enforcement action.
E. In order to facilitate the approval of the proposed settlement, and to carry out its
terms, the Parties desire to enter into the following agreement.
NOW, THEREFORE, in exchange for their mutual promises and for other good and
valuable consideration specified herein, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. The Parties agree to support, advocate for, and promote the proposed Administrative
Civil Liability, Order No. R9-2008-0072, described above.
2. The Parties covenant and agree that they will not contest the proposed
Administrative Civil Liability before the Regional Board, the State Board, or any court if
the proposed Order No. R9-2008-0072 is adopted by the Regional Board.
3. The Cities agree to pay the proposed Administrative Civil Liability assessment within
30 days of adoption of Order No. R9-2008-0072.
4. In the event that the SEP described above in C.b., cannot be performed by the U.S.
Fish & Wildlife Service and California Department of Fish & Game then the remaining
funds shall be paid to the State Board's Waste Discharge Permit Fund Abatement
Account.
5. Performance of paragraph 3 (and if applicable, paragraph 4) shall effect a mutual
release and discharge of the Parties and their respective successors and assigns,
agents, attorneys, employees, officers, and representatives from any and all claims,
demands, actions, causes of action, obligations, damages, penalties, liabilities, debts,
losses, interest, costs, or expenses of whatever nature, character, or description, that
they may have or claim to have against one another by reason of any matter or
omission arising from any cause whatsoever relating to the proposed Administrative
Civil Liability, Order No. R9-2Q08-0072, the Discharges, or the Complaint.
6. In the event that the Regional Board does not adopt Order No. R9-2008-0072 at its
regular meeting on September 10, 2008, the Cities shall have the right to a hearing on
the Complaint at a future Regional Board meeting to be scheduled by the Chair. The
Cities agree to a limited waiver of the requirement to have a hearing on the Complaint
within 90 days of service under Water Code section 13323(b) conditioned on the
iff
Settlement Agreement & Mutual Release 3 September 10, 2008
ACL Complaint No. R9-2007-0099
hearing on the proposed settlement being conducted at the September 10, 2008,
Regional Board meeting and the hearing on the Complaint, if necessary, being
conducted at the October 8, 2008, Regional Board meeting, or if no such meeting
occurs, at the next regularly scheduled meeting thereafter. Any further rescheduling of
the hearings Is subject to the written approval of the Cities. The Parties also agree that,
in the event that the Regional Board does not adopt Order No. R9-2008-0072, they
waive any and all objections related to their attempt to settle this matter, including, but
not limited to, objections related to prejudice or bias of any of the Regional Board
members or their advisors and any other objections that are premised in whole or in part
on the fact that the Regional Board members and their advisors were exposed to some
of the material facts and the parties' settlement positions, and therefore may have
formed impressions or conclusions, prior to conducting an evidentiary hearing on the
merits of the Complaint.
7. The Parties intend that the procedure that has been adopted for the approval of the
settlement by the Parties and reviewed by the public, as reflected by the proposed
Order No. R9-2008-0072, and this Agreement, will be adequate. In the event objections
are raised during the public comment period for the proposed Order No. R9-2008-0072,
the Parties agree to meet and confer concerning any such objections, and may agree to
revise or adjust the procedure as necessary or advisable under the circumstances.
8. Each person executing this Agreement in a representative capacity represents and
warrants that he or she is authorized to execute this Agreement on behalf of and to bind
the entity on whose behalf he or she executes the Agreement.
9. This Agreement shall not be construed against the Party preparing it, but shall be
construed as if the Parties jointly prepared this Agreement and any uncertainty and
ambiguity shall not be interpreted against any one party.
10. This Agreement shall not be modified by any of the Parties by oral representation
made before or after the execution of this Agreement. All modifications must be in
writing and signed by the Parties.
11. Each Party to Ibis Agreement shall bear all attorneys' fees and costs arising from ;b •
that Party's ovi/h counsel in connection with the matters referred to herein.
12. The Parties shall execute and deliver all documents and perform all further acts that
may be reasonably necessary to effectuate the provisions of this Agreement.
13. This Agreement shall be executed as duplicate originals, each of which shall be
deemed an original Agreement, and all of which shall constitute one agreement to be
effective as of the Effective Date.
14. This Agreement is entered into and shall be construed and interpreted in
accordance with the laws of the State of California.
Settlement Agreement & Mutual Release 4 September 10, 2008
ACL Complaint No. R9-2007-0099
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth above;*
REGIONAL BOARD PROSECUTION TEAM By:
. Date:
Mike McCann ~
Assistant Executive Officer
Approved As To Form:
Date:
Jorge A. Leon
Counsel to the Regional Board Prosecution Team
CITY OF VISTA By:
Date:
Approved As To Form:
Darold Pieper, City Attorney
Bv: Date:
CITY OF CARLSBAD By -
•- """^—- Date:
Approved As To Form:
Ronald R. Ball, City Attorney
Date:
COPY
R
CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD
SAN DIEGO REGION
IN THE MATTER OF: )
CITY OF VISTA )
CITY OF CARLSBAD )
SANITARY SEWER SYSTEM )
BUENA VISTA PUMP STATION ) COMPLAINT NO. R9-2007-0099
SEWER MAIN ) FOR
SAN DIEGO COUNTY ) ADMINISTRATIVE CIVIL LIABILITY
) VIOLATION OF STATE BOARD
) ORDER NO. 2006-0003-DWQ
THE CITY OF VISTA AND CITY CARLSBAD, SANITARY SEWER SYSTEM, BUENA
VISTA PUMP STATION SEWER MAIN, ARE HEREBY NOTIFIED THAT:
1. The City of Vista and the City of Carlsbad (Dischargers) are alleged to have
violated provisions of law for which the California Regional Water Quality Control
Board, San Diego Region (Regional Board) may impose civil liability pursuant to
the Porter-Cologne Water Quality Control Act, §13350 of the California Water
Code (CWC). The violations alleged herein include violations of a prohibition in
waste discharge requirements for the discharges of untreated sewage into
waters of the state.
2. The Buena Vista Pump Station is located on Jefferson Street south of Highway
78 within the City of Carlsbad. The Buena Vista Lagoon is located near the
intersection of I-5 and Highway 78, within the City of Carlsbad and City of
Oceanside.
3. This Administrative Civil Liability Complaint is issued under authority of Water
Code Section 13323.
4. The Dischargers are required to operate and maintain their sewage collection
systems to prevent sanitary sewer overflows and spills in compliance with
requirements of State Water Resources Control Board (SWRCB) Order No.
2006-0003-DWQ, Statewide General Waste Discharge Requirements for
Sanitary Sewer Systems
5. The Dischargers discharged untreated sewage to a water of the United Sates in
violation of Prohibition C.1 contained in State Water Resources Control Board
(SWRCB) Order No. 2006-0003-DWQ, Statewide General Waste Discharge
Requirements for Sanitary Sewer Systems.
City of Vista & City of Carlsbad September 28, 2007
Complaint No. R9-2007-0099
ALLEGATIONS
6. The Dischargers violated Prohibition C.1 of Order No. 2006-0003-DWQ by
discharging 7.3 million gallons of untreated sewage from March 31, 2007 through
April 3, 2007 from their 24-inch diameter sewer main at the Buena Vista Pump
Station to Buena Vista Lagoon, a water of the United States.
PROPOSED CIVIL LIABILITY
7. Persons or entities that discharge waste in violation of Waste Discharge
requirements are subject to civil liability pursuant to CWC Sections 13350, either
on a daily basis not to exceed five thousand dollars ($ 5,000) for each day the
violation occurs, or on a per gallon basis, not to exceed ten dollars ($ 10) for
each gallon of waste discharged, but not both. The statutory maximum ACL
amount for the March 31, 2007 through April 3, 2007 sewage discharges
therefore is $ 73,000,000.
8. It is recommended that, pursuant to sections 13350 (a) and (e)(2) of the CWC,
the Regional Board impose a civil liability of one million ninety-five thousand
dollars ($1,095,000) on the Dischargers for the violations alleged herein.
9. The factual and legal bases supporting this Complaint are contained in the
attached "Staff Report Buena Vista Lagoon Sewage Discharge City of Vista &
City of Carlsbad."
Dated this 28 day of September 2007
BY THE EXECUTIVE OFFICER
MICHAEL McCANN
Assistant Executive Officer (Acting)
Signed pursuant to the authority
delegated by the Executive Officer to
the Assistant Executive Officer