Loading...
HomeMy WebLinkAbout6314 . . RESOLUTION NO. 6314 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA AUTHORIZING THE FILING OF A LAWSUIT IN STATE COURT AGAINST THE LARWQCB AND THE SWRCB AND A LAWSUIT IN FEDERAL COURT AGAINST THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY EPA CHALLENGING THE TRASH TOTAL MAXIMUM DAILY LOADS FOR THE LOS ANGELES RIVER WHEREAS, the California Regional Water Quality Control Board, Los Angeles Region ("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; 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 OAL, it will then be forwarded to the United States Environmental Protection Agency ("EPA") for its review and approval; WHEREAS" on March 19, 2002, EPA also established a separate Trash TMDL for the Los Angeles River ("EPA'TMDL"). The EPA TMDL is nearly identical to the State TMDL, with the most notable exception being that the EPA TMDL does not include an Implementation Plan; 6314 , . . .. , . L . . WHEREAS, under both TMDLs, the City, along with 53 other incorporated cities in the Los Angeles County Watershed, will be required to establish programs that inventory the water borne trash in the municipal storm drain system over the next twelve-year period. The City will also be required to reduce the amount of water borne trash over this same period by 10% per year, until there is "zero" trash coming out of the City's storm drain systems and entering the Los Angeles River, i.e., a "Zero TMDL"; WHEREAS, both TMDLs require that cities monitor water borne trash for the next two years in order to establish a base line waste load. The base line waste load allocation is to then be used to monitor the City's compliance with the trash reduction mandates in the TMDLs, and both TMDLs will require the City to implement programs and capital improvements to reduce the base line waste load by 10% annually, until the City reaches the level of zero trash; WHEREAS, the State and Regional Boards, and EPA (collectively "Agencies"), failed to properly develop the TMDL in accordance with federal guidelines and the requirements of the Clean Water Act and the regulations thereunder, and failed to comply with the requirements of State Law. In addition, the Agencies failed to include requirements and other programs to address trash from "nonpoint sources" and the other "point sources," including trash coming from State and federal facilities; and WHEREAS, the Agencies also failed to perform an appropriate fiscal and costlbenefit analysis for the TMDLs, failed to consider whether the TMDLs' numeric targets are attainable, failed to determine whether they are "suitable for calculation" and based on proper technical conditions, and to determine whether the TMDLs are necessary to implement water quality standards for the Los Angeles River; 2 6314 , , > , ^, , o WHEREAS, the Agencies failed to consider the application of the maximum extent practicable ("MEP") standard required under the Clean Water Act, and whether a "zero" trash TMDL can be achieved through compliance with the MEP standard; WHEREAS, the City currently supports and funds efforts to reduce and eliminate storm water pollution. During the five and one half year period of the 1996 MS4 Permit ending on December 13, 2001, 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 the SUSMP program, completed the site visitation programs, initiated waste-oil recycling programs and implemented various other programs. The City, at a minimum, will be continuing with all of the programs that it was previously implementing under the 1996 MS4 Permit, and will be implementing additional programs as necessary to comply with the valid terms of the new MS4 Permit adopted on December 13, 2001, as such permit may be modified or revised by the State Board, or by the State or Regional Boards as a result of any Court determination on the validity of such terms; WHEREAS, under the MS4 Permit, the City, along with 83 other incorporated cities in Los Angeles County and the County of Los Angeles, will be required to expand existing storm water treatment programs, and implement new storm water programs, which the Regional Board purports will improve the quality of municipal storm water in a cost-effective manner, However, 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. In addition, the Regional Board did not develop or rely upon scientific data to support the need for the numerous programs to be imposed by the new MS4 Permit. A copy of the "Financial and Economic Impacts of Storm Water Treatment Los Angeles County NPDES Permit Area" prepared by the 3 6314 , ., - ; , ~ , California Department of Transportation in November of 1998 (Report I.D. #CTSWRT-98-72) was supplied to the Regional Board for its review and consideration before issuing the new MS4 Pennit. This Report concluded that to treat stonn water to comply with the proposed MS4 Pennit and the future Total Maximum Daily Loads would cost over $53.6 billion to construct, with an annual operational cost of $198 million, The Report also found that 13,950 acres of new stonn water retention facilities would be required, with 480 stonn water treatment facilities. The Report further concluded that annual costs per household for the new treatment facilities would be $1,295, and that property taxes would increase by as much as 70% (a 2.06% tax rate) in order to finance the capital improvements; WHEREAS, the Agencies, with the adoption of both TMDLs, are improperly seeking to shift responsibility under State and federal Law to develop and enforce a trash TMDL on nonpoint sources and other point source dischargers, on to municipalities, and to hold individual cities legally responsible for the actions and inactions of each of its citizens and visitors; 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 pennitted cities to fonn regional problem solving groups, with Los Angeles County and other government agencies, to implement cost-effective trash reduction programs; 4 6314 '. , - .. 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; 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; WHEREAS, the Coalition requested that the State and Regional Boards follow the procedures outlined in the California Environmental Quality Act (CEQA), which require that the Regional Board examine the potential significant adverse environmental impacts from the TMDL on existing City services, such as public safety, public works and other municipal programs, but the Regional Board failed to do so; WHEREAS, the State and Regional Boards further failed to discuss the Coalition Alternative and failed to amend the TMDLs to incorporate any portion of the Coalition Alternative. These Boards also refused to adequately address the impacts of the TMDLs on the environment and on other governmental services; 5 6314 . WHEREAS, the Office of Administrative Law is to consider the appropriateness of the State Board approved TMDL, to determine whether it complies with the requirements of "necessity," "authority," "clarity," "consistency," "reference," and "non-duplication," as defined under Government Code Section 11349 et seq,; WHEREAS, pursuant to a prior agreement with the California Attorney General's office, if the Office of Administrative Law approves the TMDL approved by the State and Regional Boards, the City will have thirty (30) days in which to seek relief in State Court to challenge the TMDL in that it does not comply with the Clean Water Act or State law, including on the grounds that it does not comply with the requirements ofCEQA; WHEREAS, the EPA TMDL was developed pursuant to a Consent Decree approved in that action entitled Heal the Bay. et ai, v. Browner et aJ. USDC Case No. C 98-4825 SBA. This Consent Decree mandated deadlines for the adoption of some 90 TMDLs for the Los Angeles Region, but did so without input from the County of Los Angeles, or any Cities within the County, and without any opportunity for the public to comment on the Consent Decree; WHEREAS, the stated purpose of the Consent Decree is to provide a mechanism by which certain remedies will be implemented "without delay," including the establishment of the numerous TMDLs for the Los Angeles Region, through an expedited schedule, irrespective of the schedule and process to be followed under the Clean Water Act or under State law for the proper development of TMD Ls; and 6 6314 A' 9 WHEREAS, the actions taken by the Agencies in adopting the TMDLs are inconsistent with the requirements of the Clean Water Act, the Federal and State Administrative Procedures Acts, and other State law, including CEQA, and will result in the imposition of unsupportable programs and unfunded mandates on the City and its citizenry. NOW THEREFORE, the City Council of the City of Arcadia, resolves as follows: SECTION I. To participate with the Coalition in the filing of an action in Federal District Court challenging the TMDL approved by EPA, and, as appropriate, challenging the terms of the Consent Decree which led to EPA's adoption of the TMDL, including providing any requisite pre-litigation notice as may be necessary under federal law; subject to the ongoing ability of the City to withdraw from such participation at any time in the discretion of the City Council. SECTION 2. To participate with the Coalition in challenging, in California Superior Court, the State and Regional Board's approval of the TMDL and any improprieties in the actions taken or to be taken by the Office of Administrative Law; subject to the ongoing ability of the City to withdraw from such participation at any time in the discretion of the City Council. SECTION 3, That Richard Montevideo, Esq., be retained to advise, assist, and represent the City in his representation of the Coalition in challenging the Agencies, actions as set forth above. 7 6314 ~..-- -- .' / SECTION 4. The City Clerk shall certify to the passage and adoption hereof. Passed, approved and adopted this 2nd day of July ,2002. ATTEST: ~Z~~ J ~~ APPROVED AS TO FORM: \ M:~ V tN;;z;;L City Att mey 8 6314 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6314 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 2nd day of July, 2002 and that said Resolution was adopted by the following vote, to wit: AYES: Councilmembers Chang, Kovacic, Wuo and Marshall NOES: None ABSENT: Councilmember Segal j 9 6314