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HomeMy WebLinkAbout2008-09-23; City Council; 19584; Reporting Out and Request for Appropriation to Pay Assessment Pursuant to Buena Vista Lagoon Sewage Spill Settlement AgreementCITY OF CARLSBAD - AGENDA BILL 19.584AB# MTG. 9/23/08 DEPT. M&O REPORTING OUT AND REQUEST FOR APPROPRIATION TO PAY ASSESSMENT PURSUANT TO BUENA VISTA LAGOON SEWAGE SPILL SETTLEMENT AGREEMENT DEPT. HEAD CITY ATTY. CITY MGR. RECOMMENDED ACTION: Adopt Resolution No. 2008-267 appropriating funds in the amount of $113,880 for payment of an assessment pursuant to a Settlement Agreement and Mutual Release with the California Regional Water Quality Control Board dated September 10, 2008. ITEM EXPLANATION: The parties have now settled this claim under the authority given to the City Attorney by the City Council at its closed session meeting of June 17, 2008. This item satisfies the Brown Act requirement to report the fact of a settlement approved in a prior closed session, and makes the terms and conditions of the settlement available to the public. The Settlement Agreement and Mutual Release between the City of Carlsbad, City of Vista and the California Regional Water Quality Control Board is attached. On September 10, 2008, the cities of Vista and Carlsbad jointly agreed to a Settlement Agreement and Mutual Release with the California Regional Water Quality Control Board for mitigation of the pipeline break and subsequent discharge of sewage into the Buena Vista Lagoon that occurred on April 1, 2007. Terms of the settlement require the cities of Vista and Carlsbad to jointly pay a total assessment of $1,095,000. The settlement stipulates that payments of $200,000 to the State Water Resources Control Board and $895,000 to the National Fish and Wildlife Foundation are due by October 9, 2008. Payment of the penalty mutually releases both the cities of Vista and Carlsbad from any future claims and/or assessments related to this incident. ENVIRONMENTAL IMPACT: Reporting out the fact of a settlement is not a "project" within the meaning of CEQA and therefore environmental review is not required pursuant to CEQA Regulation 15061(b)(3). DEPARTMENT CONTACT: Mark Stone, (760) 438-2722, mston@ci.carlsbad.ca.us FOR CITY CLERKS USE ONLY COUNCIL ACTION: APPROVED >S DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES D D D D Page 2 FISCAL IMPACT: The sewer pipeline is jointly owned by the cities of Vista and Carlsbad. By agreement, the City of Vista owns 89.6% of the reach and the City of Carlsbad owns 10.4%. Carlsbad's percentage share of the total penalty of $1,095,000 is calculated to be $113,880. Of this amount, $20,800 will be paid to the California Regional Water Quality Control Board and $93,080 will be paid to the National Fish and Wildlife Foundation. Both payments are due by October 9, 2008. Staff is requesting an appropriation of $113,800 from the Sewer Enterprise Operating fund to pay the assessment. There are sufficient funds in this account to cover the expense. EXHIBITS: 1. Resolution No. 2008-267 appropriating funds in the amount of $113,880 for payment of an assessment pursuant to a Settlement Agreement and Mutual Release with the California Regional Water Quality Control Board dated September 10, 2008. 2. Settlement Agreement and Mutual Release of Administrative Civil Liability Complaint No. R9-2007-0099 1 RESOLUTION NO. 2008-267 2 " 3 4 5 SEPTEMBER 10, 2008 6 7 8 10 11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROPRIATING $113,880 FROM THE SEWER ENTERPRISE OPERATING RESERVE FUND TO PAY AN ASSESSMENT PURSUANT TO THE SETTLEMENT AGREEMENT AND MUTUAL RELEASE WITH THE CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD DATED WHEREAS, on September 10, 2008, the cities of Vista and Carlsbad jointly agreed to a Settlement Agreement and Mutual Release with the California Regional Water Quality Control Board for mitigation of the pipeline break and subsequent discharge of sewage into the Buena Vista Lagoon that occurred on April 1, 2007; and WHEREAS, terms of the settlement require the cities of Vista and Carlsbad to jointly pay 12 a total assessment of $1,095,000; and 13 WHEREAS, the settlement stipulates that payments of $200,000 to the State Water Resources Control Board and $895,000 to the National Fish and Wildlife Foundation are due by 15 October 9, 2008; and 16 WHEREAS, by agreement, the City of Vista owns 89.6% of the reach and the City of Carlsbad owns 10.4%. Carlsbad's percentage share of the total penalty is calculated to be 18 $113,800; and 19 WHEREAS, of the City of Carlsbad's percentage share of the assessment, $20,800 will 20 be paid to the California Regional Water Quality Control Board and $93,080 will be paid to the 21 National Fish and Wildlife Foundation. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 23 California, as follows: 24 1. That the above recitations are true and correct. 25 2. The sum of $113,880 is appropriated from the Sewer Enterprise Operating 26 Reserve fund to pay the City of Carlsbad's share of the assessment. 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The City Council authorizes the Finance Director to make the assessment payments no later than October 9, 2008. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 23rd day of September 2008, by the following vote, to wit: AYES: COUNCIL MEMBERS LEWIS, KULCHIN, HALL, PACKARD AND NYGAARD. NOES: NONE- ABSENT: NONE. ATTEST: 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 Teamn) 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. 8. 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 Board).for deposit into the Waste Discharge Permit Fund ' Abatement Accou~it. This payment is to be paid by the Cities within' 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 lncident Specific Subaccount of the Environmental Fund for Habitat and lncident 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 Settlement Agreement & Mutual Release 2 ACL Complaint No. R9-2007-0099 September 10,2008 Project Application Form. 'P 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 a.. 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. R9-2008-0072, 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 * Settlement Agreement & Mutual Release 3 ACL Complaint No. R9-2007-0099 September 10,2008 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 this Agreement shall bear all attorneys' fees and costs arising from that Party's own counsel in connection with the matters referred to herein. 12. The Parties shall execute and deliver all documents and petform 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 ACL Complaint No. R9-2007-0099 September 10, 2008 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date set forth above:. REGIONAL BOARD PROSECUTION f EAM By: - Mike ~cCann Assistant Executive Officer Approved As To Form: Jorge A. Leon Counsel to the Regional Board Prosecution Team CITY OF VISTA By: Approved As To Form: Darold Pieper, City Attorney Bv: Date: ClTY OF CARLSBAD By' . Date: "I / I!. lo / Approved As To Form: Ronald R. Ball, City Attorney Date: 7 (lb /d BEST COPY CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD SAN DlEGO REGION IN THE MATTER OF: 1 CITY OF VISTA 1 CITY OF CARLSBAD 1 SANITARY SEWER SYSTEM ) BUENA VISTA PUMP STATION ) COMPLAINT NO. R9-2007-0099 SEWER MAIN ) FOR SAN DlEGO 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, $1 3350 of the California Water Code (CWC). The violations alleged herein include violations of a prohibition in waste discharge requirements for the discharges of untreated sewage into waters of the state. 2. The Buena Vista Pump Station is located on Jefferson Street south of Highway 78 within the City of Carlsbad. The Buena Vista Lagoon is located near the intersection of 1-5 and Highway 78, within the City of Carlsbad and City of Oceanside. 3. This Administrative Civil Liability Complaint is issued under authority of Water Code Section 13323. 4. The Dischargers are required to operate and maintain their sewage collection systems to prevent sanitary sewer overflows and spills in compliance with requirements of State Water Resources Control Board (SWRCB) Order No. 2006-0003-DWQ, Statewide General Waste Discharge Requirements for Sanitary Sewer Systems 5. The Dischargers discharged untreated sewage to a water of the United Sates in violation of Prohibition C.1 contained in State Water Resources Control Board (SWRCB) Order No. 2006-0003-DWQ, Statewide General Waste Discharge Requirements for Sanitary Sewer Systems. City of Vista & City of Carlsbad Complaint No. R9-2007-0099 September 28, 2007 ALLEGATIONS 6. The Dischargers violated Prohibition C.l of Order No. 2006-0003-DWQ by discharging 7.3 million gallons of untreated sewage from March 31, 2007 through April 3, 2007 from their 24-inch diameter sewer main at the Buena Vista Pump Station to Buena Vista Lagoon, a water of the United States. PROPOSED CIVIL LIABILITY 7. Persons or entities that discharge waste in violation of Waste Discharge requirements are subject to civil liability pursuant to CWC Sections 13350, either on a daily basis not to exceed five thousand dollars ($ 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