Resolution No. 79872
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RESOLUTION NO. 7987
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RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON AUTHORIZING THE FILING OF LAWSUITS IN STATE
AND FEDERAL COURTS CHALLENGING THE TRASH TOTAL
MAXIMUM DAILY LOADS FOR THE LOS ANGELES RIVER AND
AUTHORIZING THE CITY TO DO ALL OTHER ACTIONS DEEMED
NECESSARY OR ADVISABLE CONCERNING THE LAWSUITS
WHEREAS, the City of Vernon ("City") was issued a Permit
from the California Regional Water Quality Control Board, Los Angeles
Region ("Board") on July 15, 1996, Order No. 96-054 ("1996 MS4
Permit"), which served as the City's National Pollutant Discharge
Elimination System ("NPDES") Permit under the Federal Clean Water Act,
as well as Waste Discharge Requirements for the City under the Porter
Cologne Act until December 13, 2001; and
WHEREAS, the Board adopted the Storm Water/Urban Runoff
Permit for the County of Los Angeles and the Incorporated Cities on
December 13, 2001, which amended Board Order No. 96-054 ("new MS4
Permit"); and
WHEREAS, the Board initially adopted a Trash Total Maximum
Daily Load for the Los Angeles River Watershed ("TMDL") on January 25,
2001, but thereafter revised the TMDL and re -adopted it on September
19, 2001; and
WHEREAS, on February 19, 2002, the State'Water Resources
Control Board ("State Board") adopted a resolution approving the TMDL
adopted by the Regional Board on September 19, 2001, pursuant to
California Water Code Section 13245 ("State TMDL"). The State TMDL
has now been forwarded on to the Office of Administrative Law for
review and consideration. If approved by the Office of Administrative
1 Law, it will then be forwarded to the United States Environmental
2 Protection Agency ("EPA") for its review and approval; and
3 WHEREAS, on March 19, 2002, EPA also established a separate
4 Trash TMDL for the Los Angeles River ("EPA TMDL"). The EPA TMDL is
5 nearly identical to the State TMDL, with the most notable exception
6 being that the EPA TMDL does not include an Implementation Plan; and
7 WHEREAS, under both TMDLs, the City, along with 53 other
8 incorporated cities in the Los Angeles County Watershed, will be
9 required to establish programs that inventory the water borne trash in
10 the municipal storm drain system over the next twelve-year period.
11 The City will also be required to reduce the amount of water borne
12 trash over this same period by 10% per year, until there is "zero"
13 trash coming out of the City's storm drain systems and entering the
14 Los Angeles River, i.e., a "Zero TMDL"; and
15 WHEREAS, both TMDLs require that cities monitor water borne
16 trash for the next two years in order to establish a base line waste
17 load. The base line waste load allocation is to then be used to
18 monitor the City's compliance with the trash reduction mandates in the
19 TMDLs, and both TMDLs will require the City to implement programs and
20 capital improvements to reduce the base line waste load by 10%
21 annually, until the City reaches the level of zero trash; and
22 WHEREAS, the State and Regional Boards, and EPA
23 (collectively "Agencies"), failed to properly develop the TMDL in
24 accordance with federal guidelines and the requirements of the Clean
25 Water Act and the regulations thereunder, and failed to comply with
26 the requirements of State Law. In addition, the Agencies failed to
27 include requirements and other programs to address trash from
28 "nonpoint sources" and the other "point sources," including trash
1 coming from State and federal facilities; and
2 WHEREAS, the Agencies also failed to perform an appropriate
3 fiscal and cost/benefit analysis for the TMDLs, failed to consider
4 whether the TMDLs' numeric targets are attainable, failed to determine
5 whether they are "suitable for calculation" and based on proper
6 technical conditions, and failed to determine whether the TMDLs are
7 necessary to implement water quality standards for the Los Angeles
8 River; and
9 WHEREAS, the Agencies failed to consider the application of
10 the maximum extent practicable ("MEP") standard required under the
11 Clean Water Act, and whether a "zero" trash TMDL can be achieved
12 through compliance with the MEP standard; and
13 WHEREAS, the City currently supports and funds efforts to
14 reduce and eliminate storm water pollution. During the five and one
15 half year period of the 1996 MS4 Permit ending on December 13, 2001,
16 the City implemented additional street sweeping efforts, increased
17 catch basin cleaning, funded a public information program on storm
18 water pollution, implemented construction project inspection programs,
19 implemented the SUSMP program, completed the site visitation programs,
20 initiated waste -oil recycling programs and implemented various other
21 programs. The City, at a minimum, will be continuing with all of the
22 programs that,it was previously implementing under the 1996 MS4
23 Permit, and will be implementing additional programs as necessary to
24 comply with the valid terms of the new MS4 Permit adopted on December
25 13, 2001, as such permit may be modified or revised by the State
26 Board, or by the State or Regional Boards as a result of any Court
27 determination on the validity of such terms; and
28 WHEREAS, under the MS4 Permit, the City, along with 83 other
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1 incorporated cities in Los Angeles County and the County of Los
2 Angeles, will be required to expand existing storm water treatment
3 programs, and implement new storm water programs, which the Regional
4 Board purports will improve the quality of municipal storm water in a
5 cost-effective manner. However, a cost -benefit study was never
6 performed by the Regional Board to illustrate that the new programs
7 will result in cost-effective improvements to storm water quality. In
8 addition, the Regional Board did not develop or rely upon scientific
9 data to support the need for the numerous programs to be imposed by
10 the new MS4 Permit. A copy of the "Financial and Economic Impacts of
11 Storm Water Treatment Los Angeles County NPDES Permit Area" prepared
12 by the California Department of Transportation in November of 1998
13 (Report I.D. #CTSWRT-98-72) was supplied to the Regional Board for its
14 review and consideration before issuing the new MS4 Permit. This
15 Report concluded that to treat storm water to comply with the proposed
16 MS4 Permit and the future Total Maximum Daily Loads would cost over
17 $53.6 billion to construct, with an annual operational cost of $198
18 million. The Report also found that 13,950 acres of new storm water
19 retention facilities would be required, with 480 storm water treatment
20 facilities. The Report further concluded that annual costs per
21 household for the new treatment facilities would be $1,295, and that
22 property taxes would increase by as much as 70% (a 2.06% tax rate) in
23 order to finance the capital improvements; and
24 WHEREAS, the Agencies, with the adoption of both TMDLs, are
25 improperly seeking to shift responsibility under State and federal Law
26 to develop and enforce a trash TMDL on nonpoint sources and other
27 point source dischargers, on to municipalities, and to hold individual
28 cities legally responsible for the actions and inactions of each of
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flits citizens and visitors; and
WHEREAS, the Coalition for Practical Regulation
("Coalition"), a coalition of 42 or more Los Angeles County cities,
presented a cost-effective alternative trash reduction plan
("Coalition Alternative") to the Regional Board, which was designed to
recognize the financial constraints placed upon the cities in
implementing the TMDLs. The Coalition Alternative permitted cities to
form regional problem solving groups, with Los Angeles County and
other government agencies, to implement cost-effective trash reduction
11programs; and
WHEREAS, the Coalition and others, including the City and
the County of Los Angeles requested that the "Zero TMDL" be a "goal"
and not a legal mandate imposed on cities, to avoid making cities
liable for the actions of all individuals and visitors to the County.
These requests to make the TMDLs goals only, were rejected by the
Agencies. Thus, as a legally enforceable mandate against the cities,
the cities will be subjected to $27,500 in fines per day, per
violation, and to third party litigation, should the cities fail to
achieve the trash reduction limits in the TMDL in any particular year;
and
WHEREAS, the Coalition and other members of the public,
presented testimony to the State and Regional Boards and submitted
extensive comments to EPA, explaining the defects of the TMDLs and the
financial crisis created if the Cities were required to allocate
potentially billions of dollars to fund the new programs over the next
dozen years, and to incur hundreds of millions of dollars thereafter;
and
WHEREAS, the Coalition requested that the State and Regional
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1 for the public to comment on the Consent Decree; and
2 WHEREAS, the stated purpose of the Consent Decree is to
3 provide a mechanism by which certain remedies will be implemented
4 "without delay," including the establishment of the numerous TMDLs for
5 the Los Angeles Region, through an expedited schedule, irrespective of
6 the schedule and process to be followed under the Clean Water Act or
7 under State law for the proper development of TMDLs; and
8 WHEREAS, the actions taken by the Agencies in adopting the
9 TMDLs are inconsistent with the requirements of the Clean Water Act,
10 the Federal and State Administrative Procedures Acts, and other State
11 law, including CEQA, and will result in the imposition of
12 unsupportable programs and unfunded mandates on the City and its
13 citizenry.
14 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
15 CITY OF VERNON AS FOLLOWS:
16 SECTION 1: The City Council of the City of Vernon hereby
17 finds and determines that the recitals contained hereinabove are true
18 and correct.
19 SECTION 2: The City Council of the City of Vernon hereby
20 approves and authorizes participating with the Coalition in the filing
21 of an action in Federal District Court challenging the TMDL approved
22 by EPA, and, as appropriate, challenging the terms of the Consent
23 Decree which led to EPA's adoption of the TMDL, including providing
24 any requisite pre -litigation notice as may be necessary under federal
25 law.
26 SECTION 3: The City Council of the City of Vernon hereby
27 approves and authorizes participating with the Coalition in
28 challenging, in California Superior Court, the State and Regional
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Board's approval of the TMDL and any improprieties in the actions
taken or to be taken by the Office of Administrative Law.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the retention of Richard Montevideo, Esq. of the law
offices of Rutan & Tucker, to advise, assist, and represent the City
in his representation of the Coalition in challenging the Agencies
actions as set forth above.
SECTION 5: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send a copy of this
resolution to:
Richard Montevideo, Esq.
Rutan & Tucker, LLP
P.O. Box 1950
Costa Mesa, CA 92628-1950
SECTION 6: The City Council of the City of Vernon hereby
authorizes the City Administrator to execute any documents necessary
to implement and carry out the purposes of the challenges.
SECTION 7: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 19th day of June, 2002.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
C"
i
LEONIS C. MALB RG, M yor
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V.`MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
7987, was duly adopted by the City Council of the City of Vernon at a
regular meeting.of the City Council duly held on Wednesday, June 19,
2002, and thereafter was duly signed by the Mayor of the City of
Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
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,F
If
As
STAFF REPORT
NPDES TRASH TOTAL MAXIMUM DAILY LOAD
COALITION FOR PRACTICAL REGULATION LAWSUIT
The United States Environmental Protection Agency (EPA) has established a "Zero" Trash TMDL
(Total Maximum Daily Load) for the Los Angeles River, while a nearly identical TMDL is in the
process of being approved as a regulation at that State level by the State Water Resources Control
Board (SWRCB). This report explores the impacts of the TMDL and the proposed litigation.
Fiscal Impact•
The City is a member of the Coalition for Practical Regulation (CPR), a group of 42 Los Angeles
County cities. The estimated cost for the State and Federal lawsuits is $120,000, approximately
$3,000 per city member. Costs for the federal litigation are covered in this year's annual membership
dues to the CPR. No additional funds are requested at this time.
Background:
The EPA and the Natural Resources Defense Counsel entered into a Consent Decree in 1998
mandating the development of over 90 TMDLs for the Los Angeles region during the next five years.
TMDLs will set numeric limits for dozens of constituents of storm water. TMDLs will not only be
developed for trash, but for bacteria, sediments, pesticides, metals and other constituents of storm
water.
TMDLs will effectively establish numeric limits, which will be measured at the various outfalls in
the City's storm drain system. Cities whose storm water exceeds the specified numeric limit are
subject to daily fines of $27,500 by the Regional Water Quality Control Board (RWQCB) and
exposed to third party litigation under the Clean Water Act.
"ZERO" Trash TMDL will set a Precedent
The Trash TMDL for the Los Angeles River requires that cities and the County measure water -borne
trash during the next two (2) year period to establish a baseline of trash in their storm drain system.
Cities will then be required to reduce the amount of trash in the storm drain system by 10% per year,
to "Zero" by the tenth year. A Trash TMDL was developed for the East Fork of the San Gabriel
River in March 2000, but the entire area was in the Angeles National Forest, with no effect on the
cities.
Technically, only those cities draining into the Los Angeles River are covered by this TMDL.
However, we believe this TMDL will be used as a model for the other Trash TMDLs. The RWQCB
also adopted the same TMDL for the cities in the Ballona Creek watershed. The State is currently
r'
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recommending placing the entire San Gabriel River on a "watch list" for imposing a future Trash
TMDL.
The ZERO Trash TMDL will also be used as a model for other TMDLs, as well. The Regional Board
adopted a Coliform Bacteria TMDL for the Santa Monica Bay in March. This is in essence another
"ZERO" TMDL, since it requires that the cities and the Sanitation District divert "dry weather"
storm water run-off to the local sewer system.
The State is also vigorously applying the "Tributary Rule." Cities have maintained that storm water
regulations are limited to "Waters of the United States", the rivers and major flood control channels.
Various Regional Boards have begun applying federal and state requirements to individual storm
drains, in effect, chasing storm water from the flood control channels, to the local storm drain
systems, to smaller private drains.
"ZERO" Should be the Goal — Not the Mandate
Cities are supportive of cleaning storm water with cost-effective programs. Most cities have
increased street sweeping to a weekly basis, instituted parking restrictions on street sweeping days,
and improved catch basin cleaning and maintenance of city facilities. Cities also have anti -littering
ordinances, code enforcement, recycling and public education programs.
However, it is unclear how cities can realistically comply with a "ZERO" Trash TMDL. Compliance
will ultimately require the modification of catch basins and/or the construction of treatment facilities,
to screen the trash from the storm water. These modifications bring with them a series of new
problems — including increased annual maintenance costs and the increased risk of flooding private
property at catch basins modified to screen trash, as well as increased liability for injuries or damages
caused from such catch basins. We believe it is not practically or technically possible at this time to
achieve a "ZERO" level.
The CPR, along with the City and County of Los Angeles, requested a review of the Regional
Board's Trash TMDL by the State Water Resources Control Board. All of the appealing parties
protested the setting of the "ZERO" requirement, clarifying that "ZERO
is a suitable goal for storm water, but that it should not be a hard and fast requirement. The parties
had other objections — including the fact that this TMDL was developed using only one data point.
The entire ZERO TMDL rests on the evidence from one storm drain in the City of Calabasas — a
semi rural area. There are over 100,000 catch basins in Los Angeles County.
How will the ZERO TMDL be Enforced?
The State Board made minor modifications to the Trash TMDL, but left in place the ZERO
mandates. Cities can be found in non-compliance each year that they fail to reach the increasing
mandates. For example, a city would be out of compliance in year three if they only reach 29%
reduction, instead of the mandated 30%. A city will be out of compliance in year nine, if they reach
89% reduction instead of the mandated 90%.
The State is proposing to enforce the Trash TMDL, along with the other 90 TMDLs, through the
City's NPDES Permit. This creates two major problems. First, enforcement of the NPDES Permit
will subject the City to Regional Board fines and third -party litigation. Second, many state and
federal categorical grant programs for water quality projects prohibit the funding of NPDES Permit
requirements. Cities are finding that they are categorically denied State and Federal funding when
requesting help on these new storm water requirements.
How will Cities Fund the ZERO Trash TMDL?
Staff believes that the ZERO Trash TMDL is worse than the waste diversion mandates of AB 939.
AB 939 did not set a 100% diversion requirement, although there is now a bill in Sacramento (SB
1526) proposing an impossible 100% diversion. Significantly, AB 939 could be funded through
refuse contracts. The ZERO Trash TMDL is akin to setting a 100% diversion rate, with no funding
mechanism. It is unclear how the cities will fund the construction of new facilities or programs to
implement the ZERO Trash TMDL, with the effects of Proposition 218 on new fees and taxes.
The League has prepared an issue paper on the problems of funding storm water programs. The
Howard Jarvis Taxpayers Association has recently successfully sued the City of Salinas for that
City's imposition of storm water fees, based on the provisions 218, thereby overturning the City's
storm water fee. A recent Court of Appeal decision was issued against the City overturning the fee.
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro—Tem
WM. `BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
City Council
City of Vernon
Honorable Members:
6-L%
\9
EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
CITY HALL BRUCE W. OLSON
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 Police Chief
TELEPHONE (323) 583-8811 FAX: (323) 826-1481
June 13, 2002
,v
NO
Q!
The Federal Environmental Protection Agency (EPA) and the State of
California, State Water resources Control Board (SWRCB), and
California Regional Water Quality Control Board, Los Angeles Region
(CRWQCB) are implementing a "Trash Total Maximum Daily Load"
requirement of zero, which means that "zero" trash shall be discharged
from the Los Angeles River Watershed. This would require a multi-
million dollar effort with a low probability of success. The
Coalition for Practical Regulation (CPR) is requesting that the
Coalition Members join and adopt a resolution challenging the "Trash
Total Maximum Daily Load" requirement of zero.
This has been reviewed by the City Attorney and it is hereby
recommended that a resolution be approved and executed.
Very truly yours,
V-
Bruce V. Malkenhorst�
City Administrator/City Clerk
BVM/gm
�COMMUNITY SERVICES &WATER DEPARTMENT
l/
OFFICE MEMORANDUM
TO: Bruce Malkenhorst, City Administrator
FROM: Samuel Kevin Wilson,'Director of Community Services & Water
DATE: June 11, 2002
SUBJECT: NPDES — Trash Total Maximum Daily Load — CPR Lawsuit
The Coalition for Practical Regulation (CPR) has determined that a lawsuit is necessary
to stop the Federal EPA and the State of California, State Water Resources Control Board
(SWRCB) and Cal' ornia Regional Water Quality Control Board, Los Angeles Region
(CRWQCB) from mplementing a "Trash Total Maximum Daily Load" requirement of zero.
The three agencie have determined that "zero" trash shall be discharged from the Los Angeles
River Watershed. This limit is virtually impossible to attain and would require a multi -million
dollar effort with low probability of success. The CPR is of the opinion that this limit was set
without the prope procedures and will secure modification of the determination through this
lawsuit.
The CPR equests all the coalition members to join the lawsuit and requests the City of
Vernon pass a reE olution to indicate its support. If you concur, I request the resolution be
presented to the G ity Council on June 19, 2002 for consideration. I have attached a staff report
on this matter.
C: City Attorney
Attachment \
SKW/sn