HomeMy WebLinkAbout03/12/99 AGENDABREMERTON CITY COUNCIL
239 4TH STREET
BREMERTON, WA 98337
CITY COUNCIL AGENDA
SPECIAL MEETING
MARCH 12, 1999
1. CALL TO ORDER: 12:55 P.M.
A. Pledge of Allegiance
2. CONSENT AGENDA
Items listed below have been distributed to Council members in advance for study
and will be enacted by one motion. If separate discussion is desired on an item, it
may be removed from the Consent Agenda and placed on the Regular Agend~a at
the re.quest of a Council member. ~
A. Motion to Appr~on Resolution in
Puget Soundkeepers Alliance v. City of Brerne~,, #AB99-043
AGENDA BILL
BREMERTON CITY COUNCIL
1. SUBJECT: FOR AGENDA OF: March 12, 1999
Motion to Approve Mediation ORIGINATING DEPT: Legal
Resolution in Puget Soundkeepers ORIGINATOR: Glenna Malanca,
Alliance vs. City of Bremerton City Attorney
DATE SUBMITTED: March 11, 1999
2. ~C~LEARANCES: ,]Comment on back if necessary) 3. EXHIBITS:
Gien~a'~lanc~] 'City Attorney
Council Study Sessions
Executive Session 3/10/99
Fiscal & Budget Chairman
Executive Session 3/10/99
Operations Committee Chairman
ENDORSEMENT 'FI INFORMATION [] APPROVED BY COUNCIL PRESID.~T FO~ S~BMITTAL:
4. S~X STATEMENT AND REQUIREMENT FOR COUNCIL ACTION:
Mediation Resolution dated February 22, 1999 in regards to Puget Soundkeepers
Alliance vs. City of Bremerton amending the Consent Decree of September 27, 1993.
The Mediation Resolution resolves only those issues ordered mediated by the
Court.
8. RECOMMENDATION:
Motion to conditionally approve Mediation Resolution in Puget Soundkeepers Alliance v. City of
Bremerton subject to Mayor's confirmation on March 17, 1999, at council meeting, that recent
motions filed by the Alliance do not defeat the City's ability to perform under the terms of the
Mediation Resolution subject to City Council's approval of the Mayor's recca~nendation.
9. RESPONSIBLE OFFICIAL:
ENFORCEMENT OFFICIAL:
EXPIRATION DATE:
REVIEW DATE:
10. NOTICE OF ACTION
PULLED [] TABLED [] APPROVED ~ DISAPPROVED [] AMENDED [] DATE:
COUNCIL DIRECTIVE:
(OVER)
2. CLEARANCE C0~NTS:
5. IMPACT OF NON-PASSAGE:
The City of Bremerton would not be in compliance with the Court ordered
mediation.
6. IMPACT ON STAFFING
None.
7. RESEARCH SOURCES:
MEDIATION RESOLUTION
February 22, 1999
Agreed Amendments to September 27, 1993 Consent Decree:
1. Bremerton will reschedule completion of CSO reduction projects OF's 10,11 and 12
by 2005, and will reduce CSO flows by 75% on these Outfalls by 2003;
2. Bremerton will achieve a 95 °A reduction in CSO flows by 2003. The measurement
of 95% reduction shall include reduction from all City projects, both those which are
"scheduled" reduction projects and other "non scheduled" mitigation reduction
projects. This provision is subject to extraordinary events, extreme year (ie; looking
to the National Weather Service on similar terminology, or April 1995 type event).
3. All CSO reduction projects shall be completed by December 31, 2008. Revised
schedule is attached as Exhibit "A". In the event the City seeks a modification to the
revised schedule:
A. The parties will negotiate in good faith;
B. The City will pay up to $10,000 to a mutually acceptable consultant for a
Financial Feasibility study and up to $2,000 towards the Alliance's retained
expert to conduct a review of the Financial Feasibility study for the Alliance;
C. If the matter has not been resolved at this point, the parties will conduct non-
binding arbitration with a decision being rendered by the arbitrator. The City
will pay up to $8,000 of the Alliance's attorneys fees and associated costs;
D. The Arbitrator's decision may be appealed and the matter proceed to binding
arbitration. If the Alliance appeals and betters its position from the non-
binding arbitrator's decision, the City shall pay the Alliance's reasonable
expert and attorneys fees and associated costs incurred during binding
arbitration. If the Alliance's position is not bettered during binding
arbitration, the Alliance will be responsible for its own cost of binding
arbitration.
4. Bremerton will not permit any new storm water or sewer connections in Pacific Basin
that may contribute to OF 15 until the closure of OF 15 has been verified by the U.S.
Naval Shipyard. The City verifies that all new sewage or storm water hook ups in
Pacific Basin shall be separated and the sewage and storm water component will be
routed so as to not discharge from any CSO;
5. Resolved by the parties before mediation:
CSO' flow reductions will be measured by comparing actual annual CSO volumes
per outfall with the predicted CSO flows using mean baseline equations (not the 95%
confidence interval equations)for each ou~fall. Baselines must be approved by the
State of IKashington Department of Ecology.
Each of the following agree that the foregoing agreement has been reached subject
only to the approval by the City Council of Bremerton and Puget Soundkeepers
Alliance Board Members. The agreements will be incorporated in an amendment to
the September 27, 1993 Consent Decree.
The parties are bound by the confidemiality of this agreement until final approval by both
parties' Board/Council.
Signed by the Puget Soundkeeper Alliance and the City of Bremerton on the 22nd day of
February, 1999.
MEDIATOR: Dan Ballbach
CITY OF BREMERTON
Department of Public Works & Utilities
CSO Projects .
Modified Settlement Schedule
..... 1993 1994 1995 1~)6 19~7 2000 ~1 2~ ~2 ~ ~ 2~ 2010 ~1~
P~ Road B~ '--~
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C~m~ of C~ r~c~ p~J~
?o: City Council Members
CC: Mayor Lynn Horton
03/12/99
PSA Mediation Resolution
A ~ was faxed to om' outside attorney's office last night, presumably to be filed by the Puget
~, that requests the Court to grant a moratorium for all new sewer and stcrmwater
~Within Bremerton; the appoinUnent of a receiver to m~age the consent decree requiremmts
for ~C~ suspension of all federal benefits through grants and conlracts to the City until the City
i~..~ ~imce; requirement the city to secure performance of the water quality monitoring plans
~ t$~; freeze all assets of the water, wastewater and stormwater funds of tho City, except for
~.~gencies, tmtil file receiver prepares a long range plan; hold the City in contempt and
ft~h~ ~comply with the order would result in file Mayor's arrest.
~ provisions, if granted, would negate the City's ability to perform the obligations we have
~ed in the proposed Mediatim Resolution. It is recommended flint the Council conditionally
approve file Mediation Resolution awaiting the Mayor's confirmation as to whether the requests
wifilin the motion would defeat the City's ability to comply with the Resolution. Her confmnation
would be provided by Wednesday, March 17, and appropriate action taken during file Council
meeting.
1 TRB HONOI~JL£ RICAgDO ~. MAR~
2
4
8 ~ STAT~S DI$~ CO~T
~ AT
~0 PUGET SO~~R ~LI~, )
) No. C92-5540
1~ PI~, )
) o~
~2 )
v. )
~ )
)
~5 O~ OF B~RTON,
) ~ROPOS~]
~ ~f~. )
20 ("~~) ~oa for ~a~ ~ ~ ~ Co~t D~, ~ for ~ ~.
2~ ~ ~ ~ co~~ ~ny ~ ~ ~~ ~ ~ of
22 ~ plugs, ~s, ~bi~ ~ o~ ~d~ ~bmi~ ~ re~ ~ ~ Mo~o~
23 md m~ ~ h~ ~m 1~7 ~d 1~8, ~by ~s ~o ~o~ ~ of ~
24 ~ ~ncl~on of law.
:!. ~FINDINGS O1~ FACT_
2 1. Bremerton has not established a ~outin~ monitoring program to collect samples fi, om CSOs
3 duri~ overflow events and analyzed for the parameters ~equired in ¶19, even though it has
4 five and onc half years to put the program together.
5 Bre~e~ton has not monitor[ for pliority pollutants in the desi~ated basins on
~ an eanual b~i_~ and then followed with routine monitorin$ of contaminants 'of concern as
? required by ¶20 of the Consent Decree.
8 Bremerton has not complied with the requirement of ~ll to develop a plan for
9 tracin~ and to trace sources and take control m~asures of contaminants of concern because it
10 bas not conducted the priority pollutant analysis for all of the basins.
11 Bremerton has not established an ambient monitoring program or taken samples
12 from receiving watzrs in the vicinity of the desi~,d outfalls during storm eveats at least
13 twic~ a year, as required in ~.2. In addition, Bremcrton has not analyzed the samples g~at it
24, did obtain for the param~-ters referenced in
~$ 2. From thc inc~-ption of thc Consent D~cr~ until late 1998, Bremctton did not
:L6 provide the Alliance with data results of water quality or water quantity sampling within 30
:~7 days of ils receipt as required by ~23 of the Consent Decxee.
1.8 3. Bremerton did not adopt a financing plan, or amend its budgets, or its
1.9 comprehensive plan as required under the Washington State Growth Mana~ Act to
20 incorporate thc CSO reductions schedules in the Consent Decree.
21. Brem~wn did not seek additional sources of funding ~s rcquired by the
22 Collseilt Decree. It did not apply for loans in evary year. Br~merton did no! follow the
2~ r~comm~dalions of the rate study of 1993, to issu~ approximately $11 million in bonds.
24
it~mey it
8.'~'~JOL~OltDGl~! FAX ~
4. B~m~n ~d ao~ s~k pilate ~es of ~, ~d it did not ~ly for
~.
S. B~m~on h~ ~ ~ ~o~ ~ ~ues for CSO r~on pwj~, cv~
· o~ it ~ b~ ~e~ s~ ~ ~s ~c 1994.
6. B~m~n did not ~n~d~ ~-~d ~ ~ ~d CSO ~~ ~.
7. B~n h~ not ~m~ ~y L~I ~pmvem~t D~a (~ID")
pay for CSO ~on ~j~.
8. B~n ~s ~ ~ to
-~ y~ ~ ~y for CSO ~on ~oj~
compl~ C~ow Avenue, ~de~n ~vc,
9. Br~n h~ not ~ed
De~t of E~lo~.
10. Bremen ~d not
~ ~d mo~g ~n~ ~ OF-15.
11. Br~on ~d ~t ~end i~ b~e~e av~ vol~cs ~ ~ ~d of 1~4.
CONCLUSIONS OF LAW
1. Bremen ~ ~ola~ p~ 10, 11, 12, 13, 15, 17, 19-23 ~d 32 of
Co~e~ ~e.
2. ~c ~h~ ~ en~ to rebel ~ ~~hs 34 ~d 35 of ~ ~t
B~n ~ h~d ~ ~~ of Co~.
MAR. ii.1999 ?:0~PM CARMEY BADLEY SMIIH INV.o~D ~.~/iJ
1 ORDER
2 WHEREFORE, it is hereby
3 OKI)EKED, AD~JDGED AND DECRF~D
4 l. A moratoritun for new sewe~ hookups ot new stormwater hookups is in
5 until Bremerton comes into compliance with the water quality monitoring requiremcnt~ This
~ moratorium shall continue until the twice yearly sampling has been c~ulucted, and the
'/ sampling during storm events has besn conducted, along with all of the arudysis and results
9 2. Th~ Court shall appoint a receive to manage the requirements of the Consent
1o Deet~. The AUiance slud] propose ~ receive within fifteen days of t~ipt of this Order.
11 3. AU Federal benefits through grants and conlracts to the City of Breme~n,
12 includin~ those that are funneled through State agencies, ar~ hereby suspended until
13 Brcmerton comes into compliance with the Consent Decree. This Court shall exempt from
x¢ this suspension, any Federal benefits which are needed in order to deal with an emergency or
15 public health or safety issues determined by the Court. The EPA Administrator shall "list"
16 the City of Btemerton in accordance with this order until further notice.
17 4. Btemerton s_h_~!l_ have fifteen days to develop its water quality monitoring plans,
xe to idcntif-y dedicated staff to carry out the planned, ot secu~ a contract with an external
19 consulting firm to can7 out the plan, a s~hcdulc for th~ water quality monitoring plans, and
20 an amcndcd City budget, and to cany out lbe water quality monito~__nl plan.
~-~. ~. All assets of the water, wastewater and stormwater funds of the City of
22 Bmne~n are frozen wi~h lhe following exceptions:
23 Bremcrton may pay its debt service as required, it shall continue to collect its income,
24 it may use emergency funds for emergency repairs to protect public health and safety. All
14~ F#t~ A~lu~
ORDER - 4 s~tu~
MAR. 11. 1999 7: OSPM CARMEY BADLEY SMITH MO. 3B$ P. 8/13
:~ other assets of th: wastewaler fund and lhe stormwater fund shall be used to proceed with
2 designir~ and consiruction of CSO reduciion project~ The freeze-as,set shall $~ay frozen until
:~ the receiver provides the Courl with a long ~erm financial plan for insuring compliance with
4 h~ Consent Decrce.
5 6. B~m¢~on is held in Cont~mpt of Court. Failure of thc City to comply with
6 ~ O~der shall result in comemp-~ of court, and the arre~ of the Mayor.
7 7. Plain~ffs are awarded their attorney fees and co~ts for all litil~ion since
8 January, 1996. The Court will dctcrmine the ~mount of reasonable fees in a ~parate order.
s 8. The Alliance's Motion ~o Enforce and fo~ Contempt is ~ as set for~ in
io h'ds Order.
~1 DONB IN OPBN COURT this ~ day of ,1999.
13
TI-lB HOBI. RICARDO S. MARTINI~Z
14 Pres~ by:
15
H~len M~~y, WSBA # 21448
Associated Counsel for Plaintiff
Puget Souudkceper Alliance
LAWL]~R & BURROUGHS, P.C.
20 B~n~ aw- er, S A#8 49
As~ocialed Counsel for Plaintiff'
~-1 Pu~e~ $oundkee~cr Alliance
23
24,
ORDER-