Resolution No. 81301
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RESOLUTION NO. 8130
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON AUTHORIZING THE FILING OF A LAWSUIT
CHALLENGING THE STORM WATER/URBAN RUNOFF PERMIT FOR
THE COUNTY OF LOS ANGELES AND THE UNINCORPORATED
CITIES THEREIN, EXCEPT THE CITY OF LONG BEACH
(NPDES NO. CAS004001) AND AUTHORIZING THE CITY TO
DO ALL OTHER ACTIONS DEEMED NECESSARY OR ADVISABLE
CONCERNING THE LAWSUIT
WHEREAS, the City of Vernon ("City") was issued a Permit
from the California Regional Water Quality Control Board, Los Angeles
Region ("Regional Board") on July 15, 1996, Order No. 96-054 ("1996
NPDES 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 Regional Board adopted Order No. 01-182, a
National Pollutant Discharge Elimination System ("NPDES") Permit for
Municipal Storm Water and Urban Runoff Discharges within the County of
Los Angeles and the incorporated cities therein, except the City of
Long Beach (hereinafter "NPDES Permit") on December 13, 2001; and
WHEREAS, in January of 2002, forty-nine cities, including
the City of Los Angeles, as well as the County of Los Angeles, filed
administrative petitions with the State Water Resources Control Board
("State Board") challenging the validity of the NPDES Permit on a
number of grounds, including its deletion of the "Safe Harbor"
provisions that existed in the prior 1996 NPDES Permit, the
modifications to the terms of the Permit dealing with Receiving Water
28IlLimitations and the requirement therein that would allow "numeric"
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(limits to be imposed upon municipalities (without compliance with the
"maximum extent practicable" standard set forth in the Clean Water
JAct), as well as those provisions allowing for the automatic
incorporation of total maximum daily loads ("TMDL") by the Regional
Board's Executive Officer, the failure of the Regional Board to comply
with the requirements of CEQA or to adopt terms consistent with CEQA,
the imposition of additional inspection obligations on municipalities
for various industrial and commercial facilities, and the attempt by
the Regional Board to rollback the changes that had been made to the
Standard Urban Storm Water Mitigation Plan requirements ("SUSMP
Requirements") by the State Board, along with other objectionable
terms, including various provisions which infringe upon the local land
use authority of the Cities; and
WHEREAS, although indicating in February of 2002 that it
would address a number of substantive issues raised by the
administrative petitions, on December 18, 2002, after three settlement
negotiation sessions that did not lead to a resolution of the issues,
the State Board denied all of the administrative petitions without
providing a hearing to the public, and concluded that the Petitions
"failed to raise substantial, new issues;" and
WHEREAS, the City currently supports and funds efforts to
reduce and eliminate storm water pollution; and
WHEREAS, during the five year period of the prior NPDES
Permit, the City implemented additional street sweeping efforts,
increased catch basin cleaning, funded a public information program on
storm water pollution, implemented construction project inspection
programs, implemented a Standard Urban Storm Water Mitigation Plan
(the "SUSMP") as modified by the State Board, completed the site
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visitation programs, initiated waste -oil recycling programs and
implemented various other storm water programs; and
WHEREAS, the NPDES Permit contains various language within
the Receiving Water Limitations section (and other provisions of the
Permit) which violate the "maximum extent practicable" standard, and
which in many cases, directly or indirectly seek to impose
responsibility on municipalities throughout the County, to insure that
storm water runoff into and from their storm drain systems, does not
violate water quality objectives, including numeric effluent, limits
that may be adopted through the incorporation of TMDLs; and
WHEREAS, under the NPDES Permit, the City, along with 83
other incorporated cities in Los Angeles County and the County of Los
Angeles, are required to expand existing storm water treatment
programs, and to implement new storm water programs which the Regional
Board purports will improve the quality of municipal storm water in a
cost-effective manner; and
WHEREAS, a cost -benefit study was never performed by the
Regional Board to illustrate that the new programs will result in
cost-effective improvements to storm water quality; and
WHEREAS, the Board did not develop or rely upon scientific
data to support the need for the numerous programs to be imposed by
the new Permit; and
WHEREAS, under the new NPDES Permit, the City will be
responsible for implementing a comprehensive inspection and
surveillance program of industrial and commercial facilities to
"control" storm water and non -storm water runoff from these
facilities; and
WHEREAS, a recent study ordered by the United States
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1 Congress and completed by the National Research Council of the
2 National Academy of Sciences recommended that storm water programs
3 utilize "adaptive implementation", and recognized that cities should
4 not be subjected to fines and legal action while they are developing
5 new and untested storm water programs; and
6 WHEREAS, the new NPDES Permit may place the Cities in a
7 constant state of violation, and will subject all municipalities
8 covered by the Permit to needless lawsuits by environmental
9 organizations, and exposing the Cities to excessive fines; and
10 WHEREAS, the removal of the legal "Safe Harbor," combined
11 with the addition of language putting the Cities in a constant state
12 of violation, is legally inappropriate and fundamentally unfair; and
13 WHEREAS, the revised SUSMP Requirements under the new NPDES
14 Permit are contrary to a prior order issued by the State Board, and
15 require the imposition of mitigation measures that are contrary to
16 existing State law under the California Environmental Quality Act, and
17 the Permit terms infringe upon traditional local land use authority
18 and the basic powers of local governments; and
19 WHEREAS, the NPDES Permit goes beyond the intent of the
20 Clean Water Act, and violates the California Porter -Cologne Act, by
21 "micro managing" and dictating specific programs and a particular
22 manner of compliance on the Cities, and by imposing requirements that
23 are not authorized anywhere under State or federal law; and
24 WHEREAS, the new NPDES Permit requires that the Cities
25 expand the current private property site visitation and education
26 program to a mandatory inspection and enforcement program, that the
27 Cities reduce pollutants in runoff from private industrial and
28 commercial facilities (including federal and State facilities) and
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1 that the Cities modify their CEQA Guidelines and their General Plan
2 requirements; and
3 WHEREAS, all such requirements and programs are being
4 mandated on the Cities, without any provision for State funding; and
5 WHEREAS, the actions taken by the Regional Board in adopting
6 the NPDES Permit are inconsistent with the requirements of the Clean
7 Water Act and State Law, will result in the imposition of
8 unsupportable programs on the City and its citizenry, and will result
9 in the imposition of numerous unfunded mandates on the City.
10 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
11 CITY OF VERNON AS FOLLOWS:
12 SECTION 1: The City Council of the City of Vernon hereby
13 finds and determines that the recitals contained hereinabove are true
14 and correct.
15 SECTION 2: The City Council of the City of Vernon hereby
16 approves and authorizes participating with other Cities in the county
17 with the filing of a lawsuit challenging Regional Board Order No. 01-
18 182, NPDES Permit No. CAS004001, Waste Discharge Requirements for
19 Municipal Storm Water and Urban Runoff Discharges within the County of
20 Los Angeles and the Incorporated Cities therein, except the City of
21 Long Beach.
22 SECTION 3: The City Council of the City of Vernon hereby
23 authorizes the retention of Richard Montevideo, Esq. of the law
24 offices of Rutan & Tucker, in coordination with other Los Angeles
25 County Cities, to advise, assist, and represent the City in the filing
26 and in the prosecution of a lawsuit challenging Regional Board Order
27 No. 01-182, the Municipal NPDES Permit for Los Angeles County and the
28 incorporated Cities therein, except the City of Long Beach.
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1 SECTION 4: The City Council of the City of Vernon hereby
2 authorizes the payment for its share of the cost associated with the
3 filing of this challenge pursuant to the terms of its retainer
4 agreement with Rutan & Tucker.
5 SECTION 5: The City Council of the City of Vernon hereby
6 directs the City Clerk, or his designee, to send a copy of this
7 resolution to:
8 Richard Montevideo, Esq.
Rutan & Tucker, LLP
9 P.O. Box 1950
10 Costa Mesa, CA 92628-1950
11 SECTION 6: The City Council of the City of Vernon hereby
12 authorizes the City Administrator to execute any documents necessary
13 to implement and carry out the purposes of the challenges.
14 SECTION 7: The City Clerk of the City of Vernon shall
15 certify to the passage of this resolution, and thereupon and
16 thereafter the same shall be in full force and effect.
17 APPROVED AND ADOPTED this 8th day of January, 2003.
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LEONIS C. MALk3URG, MIayor
20 ATTEST:
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23 BRUCE V. MALKENHORST, City Clerk
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CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro —Tern
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:
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
January 2, 2003
EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
KENNETH J. DeDARIO
Director of Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
BRUCE W. OLSON
Police Chief
FAX: (323) 826-1481
In December 2001, forty-nine (49) local cities, Los Angeles County,
the Building Industry Association, the Los Angeles Economic
Development Corporation, the Construction Industry Coalition on Water
Quality and other interested parties appealed the Municipal NPDES
Permit (Storm Water Permit) adopted by the Regional Water Quality
Control Board (Regional Board) to the State Water Resources Control
Board (State Board). The Storm Water Permit imposes substantial new
and unfunded mandates that are believed to exceed requirements under
existing State and Federal Law, including terms requiring the
treatment of storm water to meet numerous anticipated numeric water
quality standards. The State Water Resource Control Board denied the
Cities' and others' Petitions, without holding a public hearing. On
June 19, 2002, the City adopted Resolution No. 7987 authorizing the
City's participation with the Coalition Challenging this action.
This has been reviewed by the
and the City Attorney
the City support the
City's proportionate
BVM/gm
and it i
Coalition
share of
Director of Community Services and Water
s hereby recommended that at this time
for Practical Regulation (CPR) and the
$3,000.00 be approved.
Very truly yours,
Bruce V. Malkenhorst
City Administrator/City Clerk
COMMUNITY SERVICES & WATER DEPARTMENT
OFFICE MEMORANDUM
TO: Bruce Malkenhorst, City Administrator
FROM: Samuel Kevin Wilsonl Director of Community Services & Water
DATE: December 30, 2002
SUBJECT: National Pollutant Discharge Elimination System (NPDES) Permit Appeal To
The State Water Resources Control Board and Litigation
Forty-nine local cities, Los Angeles County, the Building Industry Association, the Los
Angeles Economic Development Corporation, the Construction Industry Coalition on Water Quality
and other interested parties appealed the Municipal NPDES Permit (Storm Water Permit) adopted by
the Regional Water Quality Control Board (Regional Board) in December of 2001 to the State Water
Resources Control Board (State Board). The Storm Water Permit imposes substantial new and
unfunded mandates that are believed to exceed requirements under existing State and Federal Law,
including terms requiring the treatment of stonn water to meet numerous anticipated numeric water
quality standards.
The State Water Resource Control Board denied the Cities' and Others' Petitions, without
holding a public hearing. The State Board's action has left the City with no other viable alternative
other than to file litigation in State court to challenge the Storm Water Permit.
Fiscal Impact:
If all existing Cities within CPR who were in the Appeal to the State Board join, the cost of
litigation for CPR Cities is estimated at approximately $3,000 per city.
Background:
The City is required to obtain coverage under a National Pollution Discharge Elimination
System (NPDES) Permit under the Federal Clean Water Act in order to discharge storm water from
its storm drain system. The storm water permits are issued for five-year periods. The City is currently
implementing the third permit of five years. Prior storm water permits focused on the City
implementing cost-effective Best Management Practices (BMP's), such as increased street sweeping,
catch basin cleaning, public education, waste -oil recycling programs, construction site run-off
mitigation measures and the installation of certain post -construction structural treatment control
measures. The City currently budgets $649,000.00 for storm water programs, including the above
referenced BMP's and capital improvements.
The latest Storm Water Permit has "upped the ante" by requiring that our storm waters not
violate water quality objectives or standards contained in the Water Quality Control Basin Plan for the
Los Angeles Region, which in many cases will result in Cities having to comply with numeric effluent
limits, irrespective of the "maximum extent practicable" standard set forth under the Clean Water Act.
The Basin Plan for the Los Angeles Region was originally adopted in 1973,.setting numeric
discharge standards for sewer treatment plants, oil refineries and factories. State of California
regulators now appear to be attempting to enforce numeric surface water quality standards on storm
water discharges from City storm drain systems, and to impose responsibility and liability on the
Cities if these numeric standards are not met. If left unchallenged, the proposed Storm Water Permit
requirements could be interpreted to require that storm water meet drinking water standards in many
locations.
A November 22, 2002 Guidance Memorandum from the U. S. EPA provides that municipal
storm water permits "typically can be expressed in BMP's, and that numeric limits will be used only
in rare instances': The U. S. EPA recognizes that storm water discharges due to rainstorms are
"highly variable in frequency and duration and are not easily characterized," and that "only in rare
cases will it be feasible or appropriate to establish numeric limits" for municipal storm water
discharges. The U. S. EPA further stated that the variability in the flood control system and minimal
data available, "make it difficult to determine with precision or certainty actual or projected loadings"
for the cities. It is unclear if U. S. EPA Region IX or the State will even follow this new national
guidance.
Incorporation of TMDLs into the Storm Water Permit
The U. S. EPA entered into a storm water Consent Decree in Los Angeles County in 1999.
The Consent Decree mandates that the U. S. EPA develop Total Maximum Daily Loads (TMDLs) for
92 analytical units in the Los Angeles Basin, including TMDLs for flood control channels, lakes,
creeks and other water bodies. The first 33 TMDLs are to be adopted by 2006 and to be incorporated
into the Storm Water Permit. The TMDLs will set numeric limits for cities and could include other
impractical and unobtainable TMDLs, similar to the "ZERO" Trash TMDL.
The Cities were not informed, invited or asked to become a party to the Consent Decree,
which was entered by the Federal District Court in San Francisco. This failure to include the Cities
occurred despite the fact that the Cities are being asked to fund, implement and maintain storm water
programs and devices necessary to meet the TMDL standards.
The Storm Water Permit effectively allows for the automatic incorporation of the TMDLs into
its terms, whether or not practicable, and in spite of the existence of specific numeric limits that are to
be imposed on municipalities. There has been significant dialogue within U. S. EPA Headquarters
regarding the viability of the TMDL program nationwide, and U. S EPA has estimated a nationwide
funding gap of $500 billion in unmet water quality needs.
Maior Impact on City Services and the Local Economy
Cities have consistently expressed concern that the latest Storm Water Permit will trigger expensive
storm water treatment, including chlorination to treat bacteria found in storm water, and reverse -
osmosis to remove metals, such as copper and zinc. The Cities have also consistently expressed their
concern that the costs of the storm water treatment programs are inappropriately being shifted down to
the local government level.
Cities are already struggling to fund existing city services, and are finding it is difficult to
secure new funding sources for storm water programs. Local storm water fees and taxes are required
to comply with Proposition 218, as affirmed by the recent Appellate Court decision in Howard Jarvis
Taxpayers Association v. the City of Salinas (2002) 98 Cal App 4' 1351.
Caltrans Headquarters has similarly grown increasingly concerned about the costs of meeting
numeric water quality objectives for runoff from the State's freeways. In 1999, Caltrans
commissioned a study to examine the technology and costs of meeting the new standards. The
Caltrans study examined compliance with numeric limits for the jurisdictional boundaries under the
Los Angeles NPDES Permit. The study resulted in a projected cost of $53.6 billion to the County of
Los Angeles and the urban area cities (the desert communities and the City of Avalon were not
included).
The Caltrans study has been heavily criticized by Regulators and the Environmental
Community. As a result, certain Coalition for Practical Regulation (CPR) Cities commissioned an
independent study that included a peer review of the Caltrans study by the University of Southern
California (USC), School of Engineering and School of Policy, Planning and Development. The USC
study is scheduled to be formally released in January, but confirms the calculations in the Caltrans
study that the costs of meeting water quality objectives to Los Angeles municipalities will be in the
tens of billions and as high as the hundreds of billions of dollars.
The USC study has verified that the Storm Water Permit, combined with the Basin Plan and
the TMDL Consent Decree, will require the advanced treatment of storm water and urban runoff. The
USC study examined various rainfall and storm water plant scenarios, concluding that treatment costs
will range between $44 billion and $283 billion for the Los Angeles region over a twenty year period.
Projected costs per household are estimated to range between $6,670 and $41,173 over this same
twenty-year period.
Maior Issues with the Storm Water Permit
There are several major problems with the Los Angeles NPDES storm water pernut.
• Receiving Water Limitations Lan ug_age
The Storm Water Permit requires that each City's runoff meet water quality objectives and/or
standards, i.e. meet "numeric" standards for storm water. Failure to comply with numeric storm water
limits will expose each City to the potential of Regional Board fines ($27,500 per day) and third -party
litigation from citizen suits.
• Lack of a Legal Safe Harbor
The National Research Council of the National Academy of Sciences and U. S. EPA
Headquarters have recognized that storm water controls are in a developmental phase, where years of
testing are required to develop cost-effective programs. Cities should not be subject to Regional
Board fines and third -party litigation during this "developmental" phase of the storm water program
because of the failure of these programs to meet these strict standards.
• TMDL Implementation
The permit requires compliance with TMDLs upon their incorporation into the Storm Water
Permit, which can be done by the Regional Board's Executive Officer (although the trash TMDL is
presently in litigation at both the Federal and State level). Placing TMDLs with numerical limits into
the Municipal Storm Water Permit, without complying with the maximum extent practicable standard,
will again inappropriately expose Cities to fines and third -party litigation for failure to meet the
numeric limits.
• Unknown Costs to Implement the Programs/ Moving Away from BMPs
Cities have expressed a common frustration that the permit costs are impossible to estimate. This
problem of estimation is in part due to the fact that the Storm Water Permit is perceived as being
"open ended," as it allows for endless amendments to the Storm Water Permit by the Executive
Officer to require compliance with waste load allocations (numeric limits) developed in TMDLs.
Another problem with the Storm Water Permit is that the storm water treatment programs required are
in the "experimental" stage, with changing technologies and techniques making estimates even more
difficult to determine. A common frustration with the Basin Plan is its overly restrictive and
unrealistic requirements, particularly the designated "beneficial" uses set forth therein and the
inappropriate and unobtainable water quality objectives identified therein.
• Storm Water fiispection and Enforcement
The Cities are confronted with two major issues with the proposed inspection program. The State
of California is required to issue storm water facility permits and conduct inspections of various
industrial and commercial businesses. The State of California collects an annual permit fee which in
part is to be used to cover the cost of the inspections of such facilities, and has recently nearly PiRled
this fee. The subject Municipal NPDES permit would shift the State of California's inspection
responsibility down to the Cities. Yet, the State of California refuses to share these permit fee
revenues with the Cities. If left unchallenged, the subject permit would require Cities to either charge
another fee for inspections of State of California permitted facilities, or to fund inspection costs from
their own general funds.
The Storm Water Permit imposes inspection obligation on Cities by expanding and changing the
business site visitation program in the prior Storm Water Permit into a mandatory inspection program
for various industrial and commercial uses. The Clean Water Act allows each city to inspect industrial
facilities which the City determines are contributing a substantial pollutant load to its storm drain
system.
• Development Regulations/ CEOA and General Plan Requirements
The Regional Board has expressed its intent to require storm water development controls on all
new development, as well as what they term substantial redevelopment (5,000 square feet of
impervious surface added to commercial, office or industrial development). In 2000, CPR
successfully fought for common sense regulations in this regard, and the State Board modified the
Regional Board's SUSMP Order to make it more reasonable to comply with.
• Lack of Regional Solutions
The Storm Water Permit contains very limited language to allow the County, the Cities, special
districts and private developers to improve storm water quality through the use of "regional solutions."
CPR had previously offered permit language for regional (inclusive of watershed and sub -watershed)
solutions, which would allow for more cost-effective storm water programs.
• Prescriptive Requirements
The Permit contains a series of prescriptive requirements, including such mandates as placing
trash receptacles at every transit stop in the community, regardless of the volume of passengers at the
individual transit stop.
State Board Denies Appeal Without Hearin
The State Board agreed to take up several of our issues in February of 2002. In
correspondence dated February 25, 2002, the State. Board stated it wished to "simplify the petition
process" and "inform you (the Petitioners) of the issues that the State Board intends to focus on in
drafting an order." These issues. included the compliance language and the iterative process, the
prescriptive requirements, TMDL incorporation, city storm water inspections and enforcement actions
on private parties, the costs of the municipal programs, and the SUSMP development controls.
The Cities received a notice from the State Board dated December 18, 2002, that "after careful
consideration, it is concluded that the petitions in this matter fail to raise, substantial, new issues....".
The State Board pointed to the court case in San Diego as raising "many of the issues" in our petition,
as another reason it does not want to take up the Cities' appeal. Yet, the State Board is well aware that
many of the Los Angeles Cities' issues will not be resolved- in the San Diego court case since that case
is hampered by the fact that the San Diego Cities did not exhaust their administrative remedies by
appealing their permit to the State Board, and thus have been precluded by the Court from raising
certain significant permit issues. The State Board letter denying the Cities' Petitions also indicates
that the State Board participated in settlement meetings to discuss the issues raised by the various
Petitions. There were three settlement meetings and the State Board limited the discussions to the
Receiving Waters Limitations (RWL) language of the Permit (despite the Cities' desire to expand the
discussions to the other agreed upon issues) and refused to seek resolution of even the RWL issues
where any resistance was provided by the environmental community.
City Staff can only conclude that the State Board is extremely concerned about the effect of
the State of California budget crisis and that it wished to avoid a public discussion of the problems the
Cities face in the Storm Water Permit. It is unfortunate that neither the Regional nor State Board saw
their responsibility as the task to balance the needs of and the benefits to the environment, with the
service demands placed upon our communities.
The City Attorney has reviewed the information provided by the CPR. Unfortunately, the
notification by the State Board provides the Cities only until January 17, 2003 to file a legal action.
The CPR has requested the City of Vernon to participate in the filing of the lawsuit and to contribute
the $3,000.00 as the City's proportionate share. If you concur, please place this item on the City
Council Agenda for January 8, 2003.
RUTAN
&TUCKERJ
ATTORNEYS AT LAW
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
611 ANTON BOULEVARD, FOURTEENTH FLOOR
COSTA MESA, CALIFORNIA 92626-1931
DIRECT ALL MAIL TO: POST OFFICE BOX 1950
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TELEPHONE 714-641-5100 FACSIMILE 714-546-9035
INTERNET ADDRESS www.rutan.com
Direct Dial: (714) 6624642
E-mail: rmontevideo@rutan.com
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PAUL FREDERIC MARX
RICHARD A. CURNUTT
JOHN B. HURLBUT, JR.
MICHAEL W. IMMELL
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JOSEPH D.CARRUTH
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JAMES B. O'NEAL
ROBERT C. BRAUN
THOMAS S. SALINGER'
DAVID C. LARSEN'
CLIFFORD E. FRIEDEN
MICR AEL D. RUBIN
IRA G. RIVIN'
JEFFREY M. ODERMAN
STAN WOLCOTT
ROBERT S. BOWER
MARCIA A. FORSYTH
WILLIAM M. MARTICORENA
JAMES L. MORRIS
MICHAELT HORNAK
PHILIP D. KOHN
JOEL D. KUPERBERG
STEVEN A. NICHOLS
Mr. Bruce V. Malkenhorst
City A.dmInistrator/City Clerk
Vernon City Hall
4305 Santa Fe Avenue
Vernon, CA 90058
A.W. RUTAN (1880-1972) JAMES B. TUCKER, SR. (1888-1950)
THOMAS G. BROCKINGTON
EVRIDIKI (VIC KI) DALLAS
RANDALL M. BABBUSH
MARY M. GREEN
GREGG AMBER
MICHAEL F. SITZER
THOMAS J. CRANE
MARK B. FRAZIER
PE N ELO PE PARMES
M. KATHERINE JENSON
DUKE F. WAHLQUIST
RICHARD G. MONTEVIDEO
LORI SARNER SMITH
ERNEST W. KLATTE, III
KIM D TH OMPSON
JAYNE TAYLOR KACER
DAVID B. COSGROVE
HANS VAN UGTEN
STEPHEN A. ELLIS
MATTHEW K. ROSS
JEFFREY WERT14EIMER
ROBERT O. OWEN
ADAM N. VOLKERT
JEFFREY A. GOLDFARB
F. KEVIN BRAZIL
LAYNE H. MELZER
January 3, 2003
L. SKI HARRISON
LARRY A. CERUTTI
CAROL D. CARTY
PATRICK D. McCALLA
RICHARD K. HOWELL
JAMES S. WEISZ'
DAVID H. HOCHNER
A. PATRICK MUNOZ
ROBERT D. FISH
S. DANIEL HARBOTTLE
PAUL J. SIEVERS
JOSEPH L. MAGA, III
KRAIG C, KILGER
KENT M. CLAYTON
STEVEN) GOON
DOUGLAS J. DENNINGTON
DAN SLATER
MARK BUDENSIEK
TREG A. JULANDER
TODD O. LITFIN
KERRA S. CARLSON
CRISTY LOMENZO PARKER
JEFFREY T. MELCHING
DAVIDI ZOETEWEY
MARLENE POSE JURGENSEN
APRIL LEE WALTER
Re: Storm Water Regulations - Los Angeles County
Dear.Mro Malkenhorst:
KAREN ELIZABETH WALTER
NATALIE SIBBALD DUNDAS
JOHN W. HAMILTON, JR.
JOHN A. RAMIREZ
PHILIP 1. BLANCHARD
TERENCE J. GALLAGHER
DEJA M. HEMINGWAY
DENISE L. MESTER
W. ANDREW MOORE
CHARLES A. DAVENPORT, III
RICHARD D. ARKO
MARK M. MALOVOS
NINKI NGUYEN
SANDRA P. THOMPSON
JENNIFER S. ANDERSON
IOHN T. BRADLEY
ALLISON LEMOINE-BUI
KAREN L. KEATING
T. LAN NGUYEN
LISA NICHOLAS NEAL
MARK) AUSTIN
TRACEY M. QUACH
ROBERT H. MARCEREAU
STEVEN W. BURT
NOAMI.DUZMAN
MITCH MILSTEIN
ANDREW E. AINSWORTH
SETH L. HANSON
ALEX S. ANGULO
ANTHONY L. BEAUMON
CHAD W. FIRETAG
ARON O. HANSEN
'ARC LUESEBRINK
DAMON D. MIRCHEFF
LONA LAYMON
CATHERI NE M. OH
POORNIMA JAYAPRAKASH
OF COUNSEL:
LEONARD A. HAM PEL
EDWARD D. SYBESMA, JR.
SENATOR DICK AC KERMAN
DAVID;. GARIBALDI, III
WILLIAM J. CAPLAN
MARTIN FESSENMAIER"
'A PROFESSIONAL CORPORATION
"PATENT AGENT
Through the informal ad hoc coalition known as the Coalition for Practical Regulation,
we have been asked to represent a number of cities in Los Angeles County, to challenge various
actions taken by the Los Angeles Regional Water Quality Control Board ("Regional Board"), the
State Water Resources Control Board ("State Board") and the United States Environmental
Protection Agency ("USEPA") in connection with recent storm water runoff orders, regulations
and requirements. In particular, we have been asked to pursue litigation and take other legal
action to challenge a recently issued National Pollutant Discharge Elimination System
("NPDES") Permit issued by the Los Angeles Regional Water Quality Control Board, and
affirmed by the State Water Resources Control Board. With this retainer letter, the City of
Vernon, a municipal corporation ("City") is retaining the law firm of Rutan & Tucker to
represent the City in such matters, and other related matters as the City may request, pursuant to
Rutan & Tucker's representation of the Coalition for Practical Regulation, and to take all such
other action as is necessary and directed by the cities' representatives in the Coalition for
Practical Regulation.
This retainer letter therefore sets forth the terms upon which the City has retained Rutan
& Tucker and also provides its consent and appropriate conflict waivers for any potential
conflicts that may be created by Rutan & Tucker's joint representation of the Cities and other
agencies entities and associations in connection therewith, and/or in its representation of other
clients on unrelated matters.
Our fees are generally based on the hourly design rates set by the firm, subject to periodic
review and change, for the various attorneys involved in handling the matter. The rates vary
depending upon the level of seniority, expertise and experience of the individuals involved.
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Starting in 2003, my hourly design rate will be $335 an hour; however, because we are, in part,
representing existing public entity clients, our hourly rate for purposes of this matter will be a
composite rate of $195 per hour for all attorney time. This rate of $195 per hour, however may
be adjusted upward, as approved by the City of Signal Hill.
Further, whenever possible, legal interns, law clerks, legal assistants and other
professionals with a lower billing rate will be utilized, consistent with the proper representation
of the interests of our clients in connection with this matter and without sacrificing proficiency.
In addition to fees, our clients are also billed for all necessary costs incurred in connection with
the representation, such as document copying costs, messenger service fees, telecopying fees,
long distance telephone costs, mileage, computer assisted research, filing fees, reporter fees,
expert fees and costs, administrative record fees, and other related litigation costs and out-of-
pocket expenses.
We render our statements on a monthly basis and they are payable within 30 days from
the date of the invoice. The invoices will describe the work performed during the billing period
and the identity of the individuals providing services, as well as a break down of billed costs. It
is customary in matters of this nature that we receive a retainer as an advance against fees and
costs prior to commencing work on the matter. However, given the prior representation of Cities
who were a part of the Coalition for Practical Regulation in connection with a challenge to
Regional Board action on the Los Angeles County SUSMP, and the Administrative challenge to
the pending NPDES Permit, and given our existing relationship with other member Cities on
various other matters, no retainer amount is being requested. However, the City of Signal Hill,
on behalf of the Coalition for Practical Regulation, may be requesting a retainer amount for legal
and other expenses to be incurred by the Coalition.
Each City shall be responsible for its pro rata portion of the fees and costs per capita, i.e.,
each City is responsible for paying its share of the invoices of the total billings, on a per capita
basis, based on the number of Cities identified as participating members at the time of the
invoice, with each City paying an equal amount. If the City determines to drop out of the
Coalition, the City shall be responsible for the costs and fees incurred up to the time it withdraws
from the proceedings, including the costs and fees to effectuate the withdrawal. Monthly
invoices showing the costs and fees incurred will be sent to the City of Signal Hill, and any
portion of the retainer amount remaining, upon the conclusion of this matter, if any, will be
returned to the City within 30 days thereafter, by Signal Hill. If Cities are added to the Coalition
after the proceedings are commenced, the pro rata allocation of the City will be adjusted
downward to account for such additional parties, and such additional parties may be required to
make retroactive payments, consistent with the total payments made by other participating Cities.
The City of Signal Hill has agreed to be responsible for administering all financial/billing
matters.
In accordance with the requirements of California Business and Professions Code section
6148, I wanted to advise you that Rutan & Tucker maintains errors and omissions insurance
coverage applicable to the services to be rendered as contemplated by this Agreement.
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ATTORNEYS AT LAW
As you know, Rutan & Tucker is currently acting as legal counsel to a number of other
cities and school districts in Orange, Los Angeles and Riverside counties, as well as a large
number of other private clients. Rutan & Tucker's representation of such public and private
entities in such other matters is unrelated to its representation of the City in this matter. Rutan &
Tucker therefore reserves the right to continue to represent such parties in these unrelated matters
and any other parties in the future which may be adverse to the City, but which are unrelated to
our representation of the City in connection with the subject proceedings. Your signature below
will confirm this understanding and your waiver on behalf of the City of any such potential
conflicts.
In representing the cities and associated entities and agencies, in these proceedings, it is
our belief that the interests of all such parties, both financially and legally, will be consistent and
that we will be able to proceed with a common strategy. Yet, there is always a potential for a
conflict of interest to arise after additional facts involving the proceedings become known and/or
as a result of a divergence in interest in the future because of positions that have or may be taken
by any respondent or defendant. One of the purposes of this retainer agreement is to provide full
disclosure of the scope of our representation and to minimize any such potential conflicts.
California Rule of Professional Conduct section 3-310 provides in part that:
Rule 3-310. Avoiding The Representation Of Adverse
Interests.
(C) A member shall not, without the informed written
consent of each client:
(1) Accept representation of more than one client in
a matter in which the interests of the clients potentially conflict; or
(2) Accept or continue representation of more than
one client in a matter in which the interests of the clients actually
conflict; or
(3) Represent a client in a matter and at the same
time in a separate matter accept as a client a person or entity whose
interest in the first matter is adverse to the client in the first matter.
(D) A member who represents two or more clients shall
not enter into an aggregate settlement of the claims of or against
the clients without the informed written consent of each client.
In accordance with Rule 3-310, please be advised that there is a potential for the interests
of the Cities and entities and agencies associated with the Cities in these proceedings, to become
adverse in the future. As an example, a potential conflict could arise if one or more of the Cities
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ATTORNEYS AT LAW
1 � ,
determines to proceed with a storm water program through settlement or litigation, that is beyond
what other Cities believe is reasonable under the circumstances. Although at this time there is no
indication that such a conflict exists, and the interests of the Cities are not in anyway presently
adverse, such a potential for adverse interests exists, and could cause a different settlement or
prosecution strategy in pursing these various matters. If a conflict does occur, the City agrees
that Rutan & Tucker may continue with its representation of the City of Signal Hill and those
cities and entities that are taking positions consistent with the City of Signal Hill, with the
conflicted City or entity then being permitted to substitute in new counsel, if it so desires.
Your signature and acceptance of this retainer agreement below will constitute the City's
approval of this provision on conflicts of interest and will also permit Rutan & Tucker to
continue to represent other private and public clients who are or may be adverse to the City
presently and in the future, both in litigation and in non -litigation matters, but unrelated to the
instant proceedings, as well as to continue to represent the other cities and entities in connection
with the matters referenced herein. Of course, in the event an unwaivable conflict occurs, and
we can no longer continue to represent the City's interests, any amounts remaining in the retainer
collected by Signal Hill that are owed to the City in accordance with the above -referenced
formula, would be returned to the City, along with copies of all research requested and other
legal analysis prepared in the course of our representation of your interests in connection with
these proceedings.
Please recognize that although there is a potential for adverse interests in the future, we
believe at this time that collective action on the part of each of the respective Cities and entities
is to their mutual advantage. It is our belief that there is a strong common interest among each of
the parties involved in the subject proceedings, which permits and allows for a coordinated
strategy in pursuing these matters. In addition, to the extent any consultants and/or expert
witnesses will be necessary to pursue these matters, at this time, we believe that a coordinated
strategy among experts and consultants will be cost effective.
We appreciate the opportunity to serve as your attorneys and anticipate a productive and
harmonious relationship. If, however, you become concerned for any reason with the services
we have or are performing, or the fees that have been assessed to the City, we encourage you to
bring this matter to our attention immediately. If we perceive a problem with the representation,
we will similarly bring it to your attention. Most such problems should be rectified by
communication and discussion.
If you wish Rutan & Tucker to represent the City in connection with this matter, we are
requesting that you provide informed written consent by signing and returning this letter to us as
soon as possible. We encourage you to seek independent counsel if you so desire regarding the
importance of this consent, and we emphasize that you remain completely free to speak to
independent counsel at any time, even if you decide to sign this Retainer Agreement and provide
the consent requested herein.
I would appreciate it if you would execute and return this letter, indicating the City's
agreement with the above and authorizing us to act accordingly.
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If you have any questions or comments with respect to any of the matters set forth in this
letter, please do not hesitate to call me. I look forward to working with you and the City and to a
successful representation of your interests. Thank you again for considering Rutan & Tucker.
Sincerely,
RUTAN & TUCKER, LLP
Richard Montevideo
RM:kmh
I have read and understood the contents of this letter and consent to Rutan & Tucker,
LLP representing the City on the matters and terms set forth above.
CITY OF VERNON
�' eonis C. Malburg, M or
ATTEST -
By: ;�L'
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM.
By:
Eduardo Olivo, City Attorney
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