CC SR 20171003 01 - RiverWatchRANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 10/03/2017
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
Consideration and possible action regarding a stipulated proposed consent decree
settling a Clean Water Act case against the City by California River Watch ("RW").
RECOMMENDED COUNCIL ACTION:
(1) adopt Resolution No. 2017 - , A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF RANCHO PALOS VERDES, CALIFORNIA, APPROVING A
STIPULATED PROPOSED CONSENT DECREE SETTLEMENT BETWEEN THE
CITY AND CALIFORNIA RIVER WATCH; and
(2) Approve proposed settlement which would become effective after stipulated
proposed consent decree is fully executed by all parties and approved by the court,
and approve stipulated proposed consent decree.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY:
Christine Carson, Sr. Associate
REVIEWED BY:
Dave Aleshire, City Attorney
APPROVED BY:
Doug Willmore, City Manager flv�
ATTACHED SUPPORTING DOCUMENTS:
A. Proposed Consent Decree (page A-1)
B. Resolution (page B-1)
BACKGROUND AND DISCUSSION
This Staff Report concerns a Proposed Consent Decree in the California River Watch v.
City of Rancho Palos Verdes matter. The purpose of this Staff Report is to provide you
with an overview of the proposed tentative settlement with California River Watch ("RW"
or "River Watch").
River Watch is an environmental group based in Northern California. On October 7,
2017, RW served a notice of alleged violations on the City, and on August 1, 2017, RW
filed a Complaint alleging that discharges of sewage from the City's municipal separate
sewer system (MS4) occurred resulting in violations of the Clean Water Act (CWA),
Section 301(a), 33 USC § 1311(a).
01203.0029/409837.1
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RW's Complaint alleges the County reported 33 sanitary sewer overflows (SSOs) within
the City's MS4 system from 2012-2016, with some spills reported as reaching surface
water. River Watch alleges the neighboring waterways included waters of the U.S., in
violation of the CWA and the City's National Pollutant Discharge Elimination System MS4
permit. RW alleges these violations are continuing. Their Complaint requests specific
remedial measures, civil penalties of $37,500 per violation per day, and attorneys' fees
and costs.
Although the City denies any liability, a continued dispute between the parties would lead
both parties to incur substantial legal and expert fees and costs, with no certainty on either
side as to the outcome of a trial. CWA cases can be expert intensive. Through settlement,
the City would save significant amounts in legal and expert fees and costs which, on the
City's side, would likely exceed $125,000 if this case were tried. Therefore, over the last
several months, the parties have negotiated a proposed settlement. The reason for
proceeding via stipulated proposed consent decree in lieu of simply a settlement
agreement is to preclude claims from other groups based on the same alleged violations.
(See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. (1987) 484 U.S. 49.)
SUMMARY OF SETTLEMENT
SETTLEMENT AMOUNT
The settlement amount is Fifty -Thousand Dollars ($50,000) via stipulated proposed
consent decree. Approximately $6,568.23 will be paid by the City (representing its
remaining deductible) and $43,431.77 will be paid by the City's insurance carrier within
ten days after court approval of the consent decree.
OTHER POTENTIAL COSTS TO THE CITY
The City recently made improvements to its pipes, and they are likely not in a condition
requiring further repair in the near future, but if they were, the cost would be $6,000 for
a 4 -foot deep pipe in a non -improved easement (or $8,000 in an improved easement),
and approximately $50,000 for a 20 -foot pipe in an improved area, by way of example.
CONDITION ASSESSMENT AND REPAIR
RW made remediation requests related to CCTV (video) inspection of the system, using
the PACP rating system to assess the condition of pipes, and making necessary
repairs. These actions were already taken by the County under contract with the City,
and in the last ten years, the entire system has undergone video inspection and
necessary repairs using PACP ratings. RW has requested public records documenting
this fact, and the City and County have produced the majority of the records. The
Consent Decree contains language stating the City certifies it has already conducted a
complete condition assessment and repairs according to the PACP system in the last
ten (10) years. The last set of repairs were recently completed, and the City will
produce the remaining records reflecting this. To the extent there are any sewer lines in
the sewer collection system located sufficiently proximate to a surface water that, if
defective, could allow exfiltration to that surface water, City will also produce records
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sufficient to show a condition assessment inspection was done. The Consent Decree
also states:
If there are any sewer lines in the City's sewer collection system in the
vicinity of the City system [Abalone Cove] sufficiently proximate to surface
water and determined by the City to pose a risk of exfiltration to that
surface water which have not been repaired or replaced, within two (2)
years after the execution of the Consent Decree, the City must repair or
replace all sewer lines in such City sewer collection system sufficiently
proximate to a surface water and determined to pose a risk of exfiltration
to that surface water which have been CCTV'd within the past ten (10)
years and were rated as Significantly Defective or given a comparable
assessment.
Within six (6) months of the Effective Date of the Consent Decree the City
must provide RW with documentary evidence that it or the County has
appropriately scheduled activities to monitor and manage such defective
pipe(s), or has repaired or has scheduled the repair of all sewer lines
found to be Significantly Defective.
Within six (6) months after the Effective Date of the Consent Decree the
City must provide RW with documentary evidence that it has been making
efforts to identify deficiencies associated with moderate defects in the
City's sewer collection system [in the vicinity of Abalone Cove] and is
monitoring its system, repaired or scheduled the repair or replacement of
sewer pipe segments containing defects with a rating of 3 based on the
PACP rating system, if such defect resulted in a sanitary sewer overflow
(SSO), or, if in the City's discretion, such defects are in close proximity to
Significantly Defective segments that are in the process of being repaired
or replaced; sewer pipe segments which contain defects with a rating of 3
that are not repaired or replaced within five (5) years after completion of
the Surface Water Condition Assessment are to be re-CCTV'd every ten
(10) years to ascertain the condition of the sewer line segment. If the City
determines that the grade -3 sewer pipe segment has deteriorated and
needs to be repaired or replaced, the City shall perform regular
maintenance, or schedule repairs or replacement within two (2) years after
the last CCTV cycle.
LATERAL REPAIR/ROOT CONTROL
City agrees to post on its website, "recommended best practices to inspect and maintain
your lateral" as a recommendation for property owners. The City does not conduct
chemical root control, but if it begins, it will use certain best practices to the extent they
do not conflict with any Sanitation District ordinance, local, state or federal laws, or
manufacturers' recommendations for use. In addition, the City will post on its website
certain "best practices in regard to chemical root control for private property owners."
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COUNTY'S REPORTS AND TESTING
The City will also include a link to the State's California Integrated Water Quality System
(CIWQS) website on our website http://www.waterboards.ca.gov/ciwqs/.
SAMPLING
City will send results of all sampling to RW once a year for three (3) years. This
sampling is already being performed and is a matter of public record.
FIVE YEAR PERIOD
The Consent Decree would be in effect for five years or the date on which all of the acts
therein have been performed, whichever occurs earlier. RW could not file suit under the
CWA for five years. The parties' recourse for any breach would be under the consent
decree.
CEQA EXEMPTION
The Consent Decree is not subject to the California Environmental Quality Act ("CEQA,
Public Resources Code Section 2100, et seq.) pursuant to Sections 15307 and 15308
(the activity assures the maintenance, restoration, enhancement, or protection of a
natural resource and protection of the environment).
RECOMMENDATION
Approve Proposed Stipulated Consent Decree.
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[Exempt From Filing Fee
Government Code § 61031
ALESHIRE & WYNDER, LLP
GLEN E. TUC ER, State Bar No. 54709
;etuckeraawwattorney_s. com
CHFJSTlNE M. CARSON, -State Bar No. 188603
ccarson ,awaaorn s.com
2361 Rosecrans Ave. Suite 475
El Segundo, California 90245
Telephone: (310) 527-6660
Facsimile: ( 10) 532-7395
Attorneys for Defendant, City of Rancho
Palos Verdes
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
CALIFORNIA RIVER WATCH, an
IRC Section 501(c)(3), non-profit,
public benefit Corporation,
Plaintiff,
V.
CITY OF RANCHO PALOS VERDES,
Defendant.
Case No. 2:17-cv-05718-AS
Assigned to Hon. Judge Atka Sagar
Ctrm. 540
[PROPOSED] CONSENT DECREE
(Environmental - Clean Water Act 33
U.S.C. § 1251 et seq.)
Trial Date: None
WHEREAS, on August 1, 2017, California River Watch ("Plaintiff' or "CRW")
filed a Complaint in this Court asserting it is an Internal Revenue Code section 501(c)3
nonprofit, public benefit corporation organized under the laws of the State of
California, dedicated to protecting, enhancing, and helping to restore the surface waters
and ground waters of California, including rivers, creeks, streams, wetlands, vernal
pools, aquifers and associated environs, biota, flora and fauna, and to educating the
public concerning environmental issues associated with these environs;
i 01203.0029/405370.3 _ 1 _ Case No. 2;17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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WHEREAS, the Complaint alleges City of Rancho Palos Verdes ("Defendant" or
"the City"), organized under the laws of the State of California, owns and operates a
f i collection system for the purpose of collecting and conveying for treatment wastewater
from residential, commercial, and industrial sources, subject to various federal and state
regulatory requirements under the federal Water Pollution Control Act, 33 U.S.C.
§ § 1251 et seq. ("Clean Water Act" or "CWA");
WHEREAS, on October 7, 2016, CRW served the City, the United States
I Environmental Protection Agency ("EPA"), EPA Region IX, the Executive Director of
the State Water Resources Control Board ("State Board") and the Executive Director of
the Los Angeles Regional Water Quality Control Board ("Regional Board") with a 60 -
day Notice of Violations and Intent to File Suit ("Notice Letter" or "Notice") alleging
various violations of the CWA relating to the collection system;
WHEREAS, the City denies all of CRW's allegations that it is liable for any
claims that were, or could have been, asserted against the City based upon the Notice
Letter;
WHEREAS, the Parties have expended effort and resources in investigating and
Ievaluating allegations and claims set forth in the Notice Letter, including the exchange
of information regarding the collection system, as well as engaging in a negotiation and
technical dialogue regarding settlement;
WHEREAS, the Parties now wish to resolve and settle all disputes, obligations,
and purported or actual claims or causes of action, which may exist by and between
CRW and the City, including without limitation any disputes, obligations, claims and/or
causes of action that were or could have been asserted in or pursuant to the Notice
Letter and have tentatively reached a settlement;
WHEREAS, on August 1, 2017, CRW filed a Complaint against the City in the
United States District Court, Central District of California, Eastern Division (Civil Case
No. 5:17-cv-01534) entitled, California River Watch v. City of Rancho Palos Verdes.
("Complaint");
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[PROPOSED] CONSENT DECREE
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WHEREAS, the Defendant denies all allegations set forth in the Complaint, and
pursuant to Federal Rule of Civil Procedure Rule 4, has either filed an Answer or
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motion under Rule 12 or will do so by November 5, 2107 or such other date as
'I permitted by Court Rules or the Court;
WHEREAS, CRW and the City (collectively referred to herein as the "Parties")
have agreed that it is in the Parties' mutual interest to enter into a Consent Decree
setting forth terms and conditions appropriate to resolving the allegations set forth in
the Complaint without further proceedings; and
WHEREAS, all actions taken by the City pursuant to this Consent Decree shall
be made in compliance with all applicable federal, state and local rules and regulations.
NOW, THEREFORE, IT IS HEREBY STIPULATED BETWEEN THE
SETTLING PARTIES AND ORDERED AND DECREED BY THE COURT AS
FOLLOWS:
1. The Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. §1331 (federal question), and 33 U.S.C. §1365(a) (CWA citizen suit
jurisdiction).
2. Venue is appropriate in the Central District Court pursuant to 33 U.S.C.
§ 1365(c)(1), because the alleged violations purportedly occurred within this District.
Venue is also proper because the City is located, and the alleged events or omissions
giving rise to CRW's claims allegedly occurred in the this District. 28 U.S.C.
§1391(b)(1),(2).
3. The Complaint is styled as a Complaint for Injunctive Relief, Civil Penalties
and Declaratory Relief (Environmental -Clean Water Act 33 U.S.C. § 1251, et seq.).
4. The Court shall retain jurisdiction over this matter for five years for purposes
of interpreting, modifying or enforcing the terms of this Consent Decree, or as long
thereafter as is necessary for the Court to resolve any motion to enforce this Consent
Decree.
Ot203.0024l405370.3 _3_ Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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OBJECTIVES
5. It is the express purpose of the Parties entering into this Consent Decree to
'I further the objectives set forth in the CWA and to resolve those issues alleged by CRW
I in its Complaint. In light of these objectives and as set forth fully below, the City and
CWA agree to comply with the provisions of this Consent Decree.
III.
COMMITMENTS OF THE CITY
AA d"r1rTn1VC illi 9r1UU "rlrV
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6. The City shall perform the below -specified acts. The City reserves the right,
in its sole discretion, to determine: (i) which persons shall perform any acts described
herein, including contractors; and (ii) the scope and technical details of, and the manner
to implement, such acts; and to the extent the Regional Water Quality Control Board is
required to review and approve, work may be subject to review and approval by the
Regional Water Quality Control Board (or such other regulatory agency as may, from
time to time, exercise jurisdiction with respect to environmental matters under the
Permit).
B. CONDITION ASSESSMENT
7. Prior to the service of the Notice, the City and County had been conducting a
condition assessment. Thus, the City has conducted a Sewer Collection System
I Investigation and Repair, a Condition Assessment and full Condition Assessment
11, within the last 10 years according to the Pipeline Assessment and Certification Program
("PACP") system. The final repairs are being completed and documented. The County
V and City have been performing surface water condition assessments as part of their
� Condition Assessments, but they are not labeled in record-keeping as "surface water
� condition assessments." Upon receipt from the County of Los Angeles, the City will
produce the remaining portion of its condition assessment reports, and records
� sufficient to document the remaining repairs pursuant to the condition assessment and
� full condition assessment have been performed according to the County's schedule. To
the extent there are any sewer lines in the sewer collection system located sufficiently
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[PROPOSED] CONSENT DECREE
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proximate to a surface water that, if defective, could allow exfiltration to that surface
I water, City will also produce records sufficient to show a surface water condition
C assessment was done.
7.a. Definitions
i. Condition Assessment: A report that comprises inspection, rating, and
evaluation of the existing condition of a sewer collection system. Inspection is, based
upon closed circuit television ("CCTV') inspections for sewer lines; manhole
inspections for structural defects; and inspections of pipe connections at the manhole.
After CCTV inspection occurs, pipe conditions are assigned a grade such as the
Pipeline Assessment and Certification Program ("PACP") rating system, developed by
the National Association of Sewer Service Companies.
ii. A Full Condition Assessment: A Condition Assessment of all sewer lines
in the sewer collection system.
iii. Surface Water Condition Assessment: A Condition Assessment of sewer
lines in the sewer collection system located sufficiently proximate to a surface water
that if defective, could allow exfiltration to that surface water. Whether a line is
"sufficiently proximate" will depend upon a number of factors including age,
composition and PACP rating of the sewer line in question, the nature of the defect, soil
types, and groundwater patterns.
iv. Surface Significantly Defective: A sewer pipe is considered to be
Significantly Defective if its condition receives a grade of 4 or 5 based on the PACP
rating system. The PACP assigns grades based on the significance of the defect, extent
of damage, percentage of flow capacity restriction, and/or the amount of pipe wall loss
due to deterioration. Grades are assigned as follows:
5 — Most significant defect
4 — Significant defect
3 — Moderate defect
2 — Minor to moderate defect
0[203.0029/405370.3 _5_ Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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1 — Minor defect.
7.b. Documents to be Provided
i. If there are any sewer lines in the City's sewer collection system in the vicinity
11 of Abalone Cove park and trail within the City of Rancho Palos Verdes maintained by
` the City ("Abalone Cove") sufficiently proximate to surface water and determined by
the City to pose a risk of exfiltration to that surface water which have not been repaired
11 ..« «...1...0.7 +L.;«. +..,.. /'ll en�.c+ A 6M +U:& n..�.no.-.+ �lni.«nn +lie l";+tit AU S11 �Z%"n;a. n..
II Vl repl ceLd, WiLL11111 LWV kZ-) y,,a1O a1L%A L111J VVL1Jli11L utrVlV V, LllV %1Ly Suall tepall VL
replace all sewer lines in such City sewer collection system sufficiently proximate to a
surface water and determined to pose a risk of exfiltration to that surface water which
have been closed circuit television inspected ("CCTV") within the past ten (10) years
and were rated as Significantly Defective or given a comparable assessment.
ii. Within six (6) months of the Effective Date of the Consent Decree, the City
I shall provide CRW with documentary evidence that it or the County has appropriately
scheduled activities to monitor and manage such defective pipe(s), or has repaired or
has scheduled the repair of all sewer lines found to be Significantly Defective.
iii. Within six (6) months of the Effective Date of the Consent Decree, the City
I shall provide CRW with documentary evidence that it has been making efforts to
identify deficiencies associated with moderate defects in the City's sewer collection
system in the vicinity of Abalone Cove and is monitoring its system, repaired or
Ischeduled the repair or replacement of sewer pipe segments containing defects with a
rating of 3 based on the PACP rating system, if such defect resulted in a sanitary sewer
overflow ("SSO"), or, if in the City's discretion, such defects are in close proximity to
Significantly Defective segments that are in the process of being repaired or replaced;
sewer pipe segments which contain defects with a rating of 3 that are not repaired or
replaced within five (5) years after completion of the Surface Water Condition
Assessment are to be re-CCTV'd every ten (10) years to ascertain the condition of the
sewer line segment. If the City determines that the grade -3 sewer pipe segment has
deteriorated and needs to be repaired or replaced, the City shall perform regular
01203.0029/405370 3
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[PROPOSED] CONSENT DECREE
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maintenance, or schedule repairs or replacement within two (2) years after the last
I CCTV cycle.
iv. The City shall continue to cooperate in the County's performance of a
Condition Assessment of all sewer at least every ten (10) years, as is already required.
C. SSO REPORTING AND RESPONSE
8. The City contracts with the County for its SSO Reporting and Response. The
City shall ask the County to modify its Backup and SSO Response Plan to include in its
reports submitted to the California Integrated Water Quality System ("CIWQS") the
following items:
a. The method or calculations used for estimating total spill volume, spill
volume that reached surface waters, and spill volume recovered;
b. For Category I and H Spills, a listing of nearby residences or business
owners who.have been contacted to attempt to establish the SSO start
time, duration, and flow rate, if such start time, duration, and flow rate
have not been otherwise reasonably ascertained, such as from a caller who
provides information that brackets a given time that the SSO began; and,
c. Taking of photographs of the manhole flow at the SSO site using either
the San Diego or Central Coast Method array (if applicable to the SSO),
or other photographic evidence that may aid in establishing the spill
volume.
9. The City shall implement and place in its Sewage System Overflow Response
Plan ("SSORP") the following:
a. A plan to reduce the potential for human health risks and adverse
environmental impacts that are associated with an SSO event that include
01203.0029/405370.3
the following:
i. In any area within the City in which the County or City cannot
confirm that all of the infectious materials, if any, from a SSO have
been removed or mitigated, the City (for City maintained areas
_7_ Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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[Abalone Cove system]) shall post appropriate public notification
signs and place barricades to keep vehicle and pedestrians away from
contact with spilled sewage until it has been deemed cleaned as
described below. For example, signs will be posted at creeks and
streams, if any, that have been contaminated as a result of an SSO
and at visible access Iocations until the risk of exposure has subsided
+,. ,......+,.moi . 1.,,,,1_,.,.,. A 1�1 117 ; ,t. AA I --
L0 a%XC;JJLauW ua%.XrTVu11u 1cvcLs. YY arning signs should
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every day to ensure that they are still in place. Major spills warrant
broader public notice. For major spills within the City, the City, if it
is a City maintained area, shall contact local media when significant
areas may have been contaminated by sewage and may pose a danger
to public health.
ii. The signs and other public notices will not be removed until City, the
Health Department or Sanitation District has determined there is no
further risk to public health and the environment.
10. The water quality sampling procedures shall include:
a. Samples should be collected as soon as safely possible after the discovery
01203.0029/405370.3
of the SSO event as follows:
i. Pursuant to the Statewide WDR, Section D subsection 7, the City or
its designee shall sample to determine the nature and extent of any
SSO whenever there is an SSO discharged to a surface where it poses
a risk to public health and where it is required by the WDR, Section
D, subsection 7.
ii. If the SSO poses an imminent and substantial endangerment to public
health or the environment that cannot be fully mitigated by the City's
current SOPS, the City shall consult a qualified biologist, health care
specialist or equivalent professional to mitigate the effects of the
SSO on the environment.
-8- Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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11. The City shall, on its website, create a link from the website to the CIWQS
home page including a county or city phone number at which members of the public
can report to the City or County a sanitary sewer overflow observed in the City. On an
annual basis for a period of three (3) years from the Effective Date of this Consent
Decree the City shall provide CRW with the results of its weekly fecal testing and
ocean testing already being performed.
D. LATERAL INSPECTION/REPAIR PROGRAM
12. The City shall develop for public notice, and place on its website within six
(6) months "recommended best practices for maintaining your laterals" for the benefit
of property owners who are responsible for their own laterals. It will remind private
property owners of their responsibility for their laterals. Such recommended best
practices shall include reasonable measures for property owners to maintain, repair and
inspect their own laterals. The recommendations will include recommended inspections
upon any of the following occurring:
a. Transfer of ownership of the property if no inspection/replacement of the
sewer lateral occurred within ten (10) years prior to the transfer;
b. The occurrence of two (2) or more SSOs caused by the private sewer
lateral within two (2) years;
c. A change of the use of the structure served (a) from residential to non-
residential use, (b) to a non-residential use that will result in a higher flow
than the current non-residential use, or (c) to non-residential uses where
the structure served has been vacant or unoccupied for more than three (3)
years;
d. Upon replacement or repair of any part of the sewer lateral;
e. Upon issuance of a building permit with a valuation of $50,000.00 or
more.
01203.0024/405370.3 -9- Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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E. CHEMICAL ROOT CONTROL
13. The City does not presently use chemical root control. The City shall post on
its website "best practices when using chemical root control" for the benefit of private
property owners responsible for their own laterals. The City shall ask County agents
using chemical root control within the City's MS4 system to use chemicals approved by
'the Los Angeles County Sanitation District for any chemical root control as
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rGI:uIUII1GIIUC( Uy LIX DOC lVllal VVaLG1 YUMILy %-VILLIVI DUMU, anu aslt Mal. all
application comply with the recommendations of the manufacturer of the chemical and
as required by Cal -OSHA. Within one (1) year after this Consent Decree, the City shall
develop its posting on its website "recommended best practices when using chemical
root control" for the benefit ofprivate property owners responsible for the maintenance
and repair of their own laterals. It will include recommended methods for the
application of root control agents that lessen the incident of these agents escaping the
collection system and keeping the public informed. If the City implements its own
chemical root control within the next five (5) years, it will also use these protocols, to
the extent they do not conflict with any Sanitation District Ordinance, Cal -OSHA rule,
product manufacturer instruction or Los Angeles County, California or federal law by
which City is bound. These protocols will also be included in these recommended best
practices when using chemical root control for the benefit of property owners who are
responsible for their laterals:
a. Blocking the line upstream and down -stream of the area of application;
b. Flushing out the line after application and removing the residue before
reopening the line;
c. Random sampling of the line after flushing to insure the protocols
01203.0029/405370.3
eliminate >90% of root control agents; and/or using root control agents
that have a half-life of fifteen (15) days or less and the breakdown
products are non-toxic to aquatic plants or animals;
_10- Case No. 2:17-ev-05718-AS
[PROPOSED] CONSENT DECREE
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d. Developing and implementing best management practices to preclude the
escape of the root control agent from the sewer line;
e. City will recommend property owners maintain records that include
identifying the PACP rating in the section being treated; a map identifying
locations where treatment occurs; the chemical(s) used including the
MSDS sheets; and the amounts applied. If the City begins chemical root
control, it will also perform such record keeping;
f. Not applying any root control agent to any sewer line that has a known
PACP rating of 4 or 5 unless the property owner applying chemical root
control can ensure that none of the root control agent will escape the
sewer line through any line defect; and
g. Not knowingly applying any root control agent in any location where
groundwater can be contaminated via infiltration or exf ltration.
14. If the City begins using chemical root control, the City shall post on its
website a map showing where a root control agent may be used throughout the sewer
system and provide a contact number for the City to respond to questions.
15. If the City begins using chemical root control, it will similarly update its City
sewer system management plan ("SSMP") to include these protocols.
F. FEES AND COSTS
16. Within ten (10) calendar days after the Effective Date of this Consent Decree
and approval by the Court, the City shall mail CRW the sum of fifty -thousand dollars
($50,000). Payment shall be made to CRW in the form of a single check (or two checks
which combined total $50,000) payable to "California River Watch" and mailed to the
Law Office of Jack Silver, 708 Gravenstein Highway North, # 407, Sebastopol, CA
95472. Said payment shall constitute full and complete satisfaction of all costs of
litigation and attorneys' fees incurred by CRW that have or could have been claimed in
connection with this matter up to and including the Effective Date of the Consent
Decree, and for CRW's expert and attorneys' fees and costs for monitoring and
01203.0029/405370.3 -11- Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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enforcing the City's compliance with the ongoing obligations under this Consent
Decree up to and including the Termination Date.
1111. COMMITMENTS OF PLAINTIFF
17. Within three days of the final signature ofthis Consent Decree by the Parties,
CRW shall file a Notice of Tentative Settlement and Notice of 45 -Day Review Period
I in the United States District Court for the Central District of California ("District
%,uuiL �.
18. Plaintiff shall submit this [Proposed] Consent Decree to EPA and the U.S.
Department of Justice ("DOJ") within three days of obtaining Parties' attorneys
signatures approving as to form (with client signatures to follow), or at the latest three
(3) days after the final signatures of the Parties, consistent with 40 C.F.R. § 135.5. The
agency review period expires forty-five (45) days after receipt by both agencies, as
evidenced by the certified return receipts, copies of which shall be provided to
Defendant if requested. In the event that EPA or DOJ object to entry of this [Proposed]
Consent Decree, the Parties agree to meet and confer to attempt to resolve the issue(s)
raised by EPA or DOJ.
19. Plaintiff shall file this Consent Decree with the District Court within three (3)
days of the Effective Date. CRW is responsible for notifying Defendant of the District
Court's entry of the Order dismissing these claims with prejudice. Such notification can
be satisfied by the Central District of California's Case Management/Electronic Case
Filing ("CM/ECF") notification to the Parties that the Order was executed and entered
by the District Court.
IV. EFFECTIVE DATE AND TERMINATION DATE
20. The term "Effective Date," as used in this Consent Decree, shall mean the
� date on which the Parties receive notice that the Court approved the fully executed
Consent Decree.
0 ( 203.0029/405370.3
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[PROPOSED) CONSENT DECREE
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21. The "Termination Date" of this Consent Decree is the date that all of the
I requirements under Section II are completed by the City or five (5) years from the date
of full execution and court approval of this Consent Decree, whichever is earlier.
IV. DISPUTE RESOLUTION
22. This Court shall retain jurisdiction over this matter for five (5) years for the
purposes of implementing and enforcing the terms and conditions of this Consent
Decree, and adjudicating all disputes among the parties that may arise under the
provisions of this Consent Decree. The Court shall have the power to enforce this
Consent Decree with all available legal and equitable remedies.
23. Any disputes between CRW and the City concerning any alleged breach of
this Consent Decree shall be subject to the following dispute resolution procedures.
Failure to satisfy the payment condition in Section II is a substantial breach of this
Consent Decree and relieves CRW of its obligations under this Consent Decree:
a. Good Faith Negotiations. CRW and the City shall make good faith efforts
to resolve informally any alleged breach of the Consent Decree. If
informal efforts to resolve the alleged breach are unsuccessful, that Party
shall provide written notice of the alleged breach and that Party's intent to
initiate the dispute resolution procedure of this Section. The notice shall
include a recitation of all facts and circumstances giving rise to the
dispute, including the particular provisions of the Consent Decree alleged
to have been breached.
b. Mediation. If the dispute is not resolved by the Parties within thirty (30)
days after such notice is given, such dispute shall be submitted to
mediation before a mutually agreeable neutral mediator. The Parties shall
each bear their own costs and attorney's fees incurred in connection with
such mediation.
c. Waiver. By agreeing to these dispute resolution provisions, the Parties
understand that they are waiving certain important rights and protections
01203.0029/4053703 -13- Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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I VI.
that otherwise may have been available to each of them if a dispute
between them were determined by judicial action including, without
limitation, the right to a jury trial, and certain rights of appeal. Other than
the remedies contained within this Consent Decree including dispute
resolution and specific performance of the terms of this Consent Decree,
there are no other remedies. The Parties specifically agree that there is no
1__I'r%-„—., 'aL. 4V1a.,.l—+.--_ VC A--
oasis W1L11111 L1113
VV11JG11L 1G41GG of W1L111n L11G 1LG111F1aL1011 l L111'-
Parties
L11GParties to support a claim for consequential damages due to any form of
breach.
MUTUAL RELEASE OF LIABILITY AND COVENANT NOT TO SUE
24. Release. It is the intent of the Parties that the execution of this Consent
G Decree constitutes a full and complete satisfaction of all rights, claims and demands by
� CRW against the City with respect to any and all allegations and claims made in the
Notice Letter under the Clean Water Act. CRW on behalf of itself and any and all of its
agents, representatives, successors, members, and assigns, except as otherwise provided
for herein does hereby absolutely, fully and forever release, relieve, remise and
discharge the City and its past and present employees, officers, directors, attorneys, and
the predecessors, successors, and assigns of any of them, from all causes of actions,
claims, damages (including punitive damages), demands, debts, actions, attorneys' fees,
costs of suit, and liabilities of every kind or nature whatsoever, arising exclusively out
of the specific claims asserted in the Notice Letter under the Clean Water Act
concerning the operation of the sewage collection system. The release provided for
herein shall be valid and effective whether the claims, causes of action, or liability
hereby released (i) were known or unknown, suspected or unsuspected, (ii) were based
in contract, tort, statute, or otherwise, or (iii) arise at law or in equity. The release shall
survive the termination of this Consent Decree, whether by satisfaction of the terms and
conditions hereof or operation of law.
01203.0029/405370.3
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25. Covenant Not to Sue. For the period beginning on the Effective Date and
ending after five (5) years, CRW agrees that neither CRW, its officers, executive staff,
members of its governing board nor any organization under the control of CRW, its
officers, executive staff, or members of its governing board, will file any lawsuit
against the City seeking relief for alleged violations of the Clean Water Act. CRW
further agrees that, beginning on the Effective Date and ending after five (5) years,
CRW will not support other lawsuits by providing financial assistance, personnel time
or other affirmative actions against the City that may be proposed by other groups or
individuals who would rely upon the citizen suit provision of the Clean Water Act to
challenge the City's compliance with the Clean Water Act. This Not to Sue provision
shall survive the termination of this Consent Decree. This Not to Sue provision shall
not effect either Party's right to enforce this Consent Decree.
VII. MISCELLANEOUS PROVISIONS
26. No Admission. The Consent Decree is the direct result of a compromise of
disputed allegations and claims. As such, this Consent Decree shall not, for any
purpose, be considered as an admission of liability by the City, nor shall the payment of
any sum of money in consideration for the execution of this Consent Decree constitute
or be construed as an admission of any liability by the City, which expressly denies any
such liability or wrongdoing.
27. Delays in Schedule Implementation. In the event implementation by the City
of the remedial measures set forth Section II of this Consent Decree does not occur by
the agreed to dates, despite the timely good faith efforts of the City to acquire any
necessary approvals and/or permits, or due to factors unforeseen at the time this
Consent Decree was entered into, the City agrees to notify CRW in writing as soon as
practicable after the anticipated delay becomes apparent, and in any case except in a
case of force majeure described below, not less than twenty (20) days prior to any
deadline set forth in Section II, and shall describe the reasons for the anticipated delay.
01203.00291405370.3 -15- Case No. 2:17-Cv-05718-AS
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28. Force Ma'e� ure. The City shall not be deemed in default or breach of this
Consent Decree by reason of any event which constitutes a force majeure. For purposes
of this Consent Decree, a force majeure is defined as any event arising from causes
beyond the reasonable control of the City or its contractors that delay or prevents
performance. This includes, without limitation, acts of God, acts of war, acts of
terrorism, fire, explosion, extraordinary weather events, restraint by court order or
1_f7, aL ',-_ �L iL_ I-C�_f_ f_1_-_1 Lf
pul)Lll: QIAEllG11Ly, Vl VL11G1 causes beyond hC-; l,1Ly J reasonable conU-ul. !Neither
increased costs nor economic hardship shall constitute a force majeure.
29. Notices. All notices, consents, approvals, requests, demands and other
communications (collectively, "Notice") which the parties are required or desire to
serve upon or deliver to the other Party shall be in writing and shall be given by
nationally — recognized overnight courier, by certified United States mail, return receipt
requested, postage prepaid, addressed as set forth below, or by facsimile or electronic
mail addressed as set forth below:
If to CRW: Jack Silver, Esq.
Law Office of Jack Silver
708 Gravenstein Highway North, #407
Sebastopol, CA 95472
Tel: (707) 528-8175
Email. lhm28 843 Asbcglobal.net
If to the City: Doug Willmore, City Manager
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
David Aleshire, City Attorney
Glen E. Tucker, Esq.
Aleshire & Wynder
18881 Von Karman Ave. # 1700
Irvine, CA 92612
01203.0029/405370.3 -16- Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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The foregoing addresses may be changed by Notice given in accordance with this
Section. Any Notice sent by mail shall be deemed received two (2) days after the date
of mailing. Any Notice sent by electronic mail shall be deemed received upon
electronic transmission thereof provided sender does not receive electronic notice of
non-delivery. Any Notice sent by overnight courier service shall be deemed received on
the day of actual delivery as shown by the confirmation of delivery by the messenger or
courier service. If the date of receipt of any Notice to be given hereunder falls on a
weekend or legal holiday, then such date of receipt shall automatically be deemed
extended to the next business day immediately following such weekend or holiday for
purposes of calculating time periods commencing upon the date of service.
30. Attorneys' Fees. Other than the payment to CRW under Section II (E) each
I Party shall bear its own past and future attorneys' fees and costs relating to the subject
matter of this Consent Decree.
31. Parties' Acknowledgment ofTerms. This Consent Decree has been carefully
and fully read and reviewed by CRW, the City, and their respective counsel, if any,
who hereby represent that the contents of this Consent Decree are understood, and
agree that this Consent Decree is binding on each party or its respective predecessors,
successors, and assigns and as described above.
32. Interpretation and Applicable Law. This Consent Decree shall be construed
and interpreted in accordance with the laws of the United States and the State of
California without regard to principles of conflicts of law. This Consent Decree shall be
interpreted and construed as a whole, according to its fair meaning and not strictly for
or against any Party, and without regard to which Party drafted the Consent Decree. All
of the promises, representations, and warranties contained in this Consent Decree
survive the execution of this Consent Decree.
33. No Assignments. Each Party to this Consent Decree represents and warrants
that it has not assigned, transferred, hypothecated, or sold to any third person or entity,
any of the rights or obligations released by or entered into under this Consent Decree.
01203.0029/405370,3 -17- Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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34. Counterparts. This Consent Decree may be executed in multiple counterparts
by the attorneys and Parties, each of which shall evidence one and the same agreement.
35. Headings. The headings used in this Consent Decree are for convenience of
reference and shall not be used to define any provision.
36. Entire Consent Decree in Writing. This Consent Decree constitutes the entire
agreement between the Parties hereto with respect to the subject matter set forth herein
Iailu supersedes all previolds or contemporaneous negotiations, com-LL1LLGnLs (oral or
written), and writings with respect to the subject matter set forth herein.
37. Modification or Amendment. This Consent Decree or any of its provisions
may be modified or amended only by written agreement executed by all Parties to this
I Consent Decree.
38. Severability. The invalidity or unenforceability of any provision of this
Consent Decree shall in no way affect the validity or enforceability of any other
provision. If, in any action before any court or other tribunal or competent jurisdiction,
any term, restriction, covenant, or promise is held to be unenforceable for any reason,
then such term, restriction, covenant, or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or other tribunal and, if it cannot be so
modified, that this Consent Decree shall be deemed amended to delete here from such
provision or portion adjudicated to be invalid or unenforceable, and the remainder of
this Consent Decree shall be deemed to be in full force and effect as so modified. Any
such modification or amendment in any event shall apply only with respect to the
operation of this Consent Decree in the particular jurisdiction in which such
adjudication is made.
39. Representations and Warranties. This Consent Decree is given voluntarily,
free of undue influence, coercion, duress, menace, or fraud of any kind. No Party, nor
any officer, agent, employee, representative, or attorney of or for any Party, has made
any statement or representation to any other Party regarding any fact relied upon in
entering this Consent Decree, and no Party is relying upon any statement,
01203.0029/4053703 -18- Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE
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representation, or promise of any other Party, nor of any officer, agent, employee,
representative, or attorney of or for any Party, in executing this Consent Decree or in
making the settlement provided herein, except as expressly stated in this Consent
Decree.
40. No "Third Party Beneficiaries. This Consent Decree is not intended to confer
any rights or obligations on any third party or parties, and no third party or parties shall
have any right of action under this Consent Decree for any cause whatsoever. Subject
only to the express restrictions contained in this Consent Decree, all of the rights, duties
and obligations contained in this Consent Decree shall inure to the benefit of and be
binding upon the Parties, and their successors and assigns.
41. Authority. Each of the persons signing this Consent Decree on behalf of an
entity represents and warrants that he or she has actual authority and capacity to execute
the Consent Decree on behalf of the entity and to bind it to all of the terms of this
Consent Decree.
IN WITNESS WHEREOF, the undersigned have executed this Consent Decree as
of the date first set forth below.
APPROVED AS TO FORM;
ATTORNEYS FOR CALIFORNIA
RIVER. WATCH
- av --'�
D, 1D WEINSOFF,
.lA K SILVER
-19- Case No. 2:17-ev-057 18 -AS
IPIMPC)SFI)J % ONSI NN -1 DECREF
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representation, or promise of any other Party, nor of any officer, agent, employee,
representative, or attorney of or for any Party, in executing this Consent Decree or in
making the settlement provided herein, except as expressly stated in this Consent
Decree.
40. No Third Party Beneficiaries. This Consent Decree is not intended to confer
any rights or obligations on any third party or parties, and no third party or parties shall
have any right of action under this Consent Decree for any cause whatsoever. Subject
only to the express restrictions contained in this Consent Decree, all of the rights, duties
and obligations contained in this Consent Decree shall inure to the benefit of and be
binding upon the Parties, and their successors and assigns.
41. Authority. Each of the persons signing this Consent Decree on behalf of an
entity represents and warrants that he or she has actual authority and capacity to execute
the Consent Decree on behalf of the entity and to bind it to all of the terms of this
Consent Decree.
IN WITNESS WHEREOF, the undersigned have executed this Consent Decree as
of the date first set forth below.
APPROVED AS TO FORM:
ATTORNEYS FOR CALIFORNIA
RIVER WATCH
DAVID WEINSOFF,
JACK SILVER
01203.0029/405370.3 _ 19_ Case No. 2:17-cv-05718-A5
[PROPOSED] CONSENT DECREE
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SO STIPULATED:
IT IS SO ORDERED.
DATED:
01203.0029/405370.3
M
FOR THE -CITY OF
ES
GLEN E. TUCKER `
Aleshire & Wynder, LLP
CITY OF RANCHO PALOS
VERDES
Brian Campbell, Mayor
CALIFORNIA RIVER WATCH
Larry Hanson, Board President for
California River Watch
HON. JUDGE ALKA SAGAR
_20_ Case No. 2:17-cv-05718-AS
[PROPOSED] CONSENT DECREE A-21
RESOLUTION NO. 2017 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RANCHO PALOS VERDES, CALIFORNIA, APPROVING A
STIPULATED PROPOSED CONSENT DECREE SETTLEMENT
BETWEEN THE CITY AND CALIFORNIA RIVER WATCH
WHEREAS, the City of Rancho Palos Verdes ("the City"), owns a collection
system for the purpose of collecting and conveying for treatment wastewater, subject to
various federal and state regulatory requirements under the federal Water Pollution
Control Act, 33 U.S.C. §§1251 et seq. ("Clean Water Act" or "CWA"); and
WHEREAS, on October 7, 2016, California River Watch ("RW") served the City,
the United States Environmental Protection Agency, Region IX, the Executive Director
of the State Water Resources Control Board and the Executive Director of the Los
Angeles Regional Water Quality Control Board with a 60 -day Notice of alleged
Violations and Intent to File Suit ("Notice Letter") alleging various violations of the CWA
relating to the collection system; and
WHEREAS, on August 1, 2017, RW filed a complaint against the City in the
United States District Court, Central District of California, Eastern Division (Civil Case
No. 5:17-cv-01534) entitled, California River Watch v. City of Rancho Palos Verdes; and
WHEREAS, the City denies all of RW's allegations that it is liable for any claims
that were, or could have been asserted against the City based upon the Notice Letter;
and
WHEREAS, the Parties now wish to resolve and settle all disputes, obligations,
and purported or actual claims or causes of action, which may exist by and between
RW and the City, including without limitation any disputes, obligations, claims and/or
causes of action that were or could have been asserted in or pursuant to the Notice
Letter; and
WHEREAS, the City and RW have now negotiated a resolution to this dispute
and the terms resolving this dispute have been included in the Proposed Consent
Decree presented to the City Council and attached hereto as Exhibit "A"; and
WHEREAS, under the Proposed Consent Decree, the City will pay Fifty
Thousand dollars ($50,000) to RW. Of this amount, Forty Three Thousand Four
Hundred, Thirty One Dollars and Seventy Seven Cents ($43,431.77) would be paid by
the City's insurance carrier, and Six -Thousand, Five Hundred, Sixty Eight Dollars and
Twenty Three Cents ($6,568.23) would be paid by the City. The payment will constitute
full and complete satisfaction of all costs of litigation and attorneys' fees incurred by RW
that have or could have been claimed in connection with this matter up to and including
the effective date of the Proposed Consent Decree, and for RW's expert and attorneys'
01203.0029/409838.1 Resolution No. 2017 -
Page 1 of 4
fees and costs for monitoring and enforcing the City's compliance with the ongoing
obligations under the Proposed Consent Decree; and
WHEREAS, the terms of the Proposed Consent Decree also include specified
record-keeping, inspection and/or maintenance efforts described therein; and
WHEREAS, the Proposed Consent Decree would not become effective until fully
executed by both parties and approved by the Court with notice to the parties of such
approval; and
NOW, THEREFORE, the CITY COUNCIL of the CITY of RANCHO PALOS
VERDES, CALIFORNIA, does hereby resolve as follows:
Section 1. The foregoing recitals are true and correct and are incorporated by
reference herein.
Section 2. The City Council hereby approves the Proposed Consent Decree
between the City and California River Watch regarding alleged Clean Water Act
violations related to the City's collection system, attached hereto as Exhibit "A".
Section 3. The Proposed Consent Decree is categorically exempt from the
California Environmental Quality Act (CEQA, Public Resources Code Section 2100, et
seq.) pursuant to Sections 15307 and 15308 of the CEQA Guidelines; the action
assures the maintenance, restoration, enhancement, or protection of a natural resource
and protection of the environment.
Section 4. The City Clerk shall certify to the passage, approval, and adoption
of this Resolution, and shall cause this Resolution and her certification to be entered in
the Book of Resolutions of the City Council.
PASSED, APPROVED, AND ADOPTED this 3rd day of October 2017.
Mayor
ATTEST:
Emily Colborn, City Clerk
01203.0029/409838.1 Resolution No. 2017 -
Page 2 of 4
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss
CITY OF RANCHO PALOS VERDES )
I, Emily Colborn, City Clerk of the City of Rancho Palos Verdes, do hereby certify
that the above Resolution No. 2017-_, was duly and regularly passed and adopted by
the said City Council at a regular meeting thereof held on October 3, 2017.
CITY CLERK
01203.0029/409838.1 Resolution No. 2017 -
Page 3 of 4
EXHIBIT "A"
PROPOSED CONSENT DECREE
01203.0029/409838.1 Resolution No. 2017 -
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