HomeMy WebLinkAboutRES 2002-45RESOLUTION NO. 2002- 4 5
A Resolution of the City Council of the City of Diamond Bar
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;
WHEREAS, under both TMDLs, the 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 cities 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 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 compliance with the trash reduction mandates in the TMDLs, and both
TMDLs will require cities to implement programs and capital improvements to reduce the base
line waste load by 10% annually, until the cities reach 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 costibenefit
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
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conditions, and to determine whether the TMDLs are necessary to implement water quality
standards for the Los Angeles River;
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 fiends 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 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
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
Permit. This Report concluded that to treat storm water to comply with the proposed MS4
Permit 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
storm water retention facilities would be required, with 480 storm 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
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permitted cities to form regional problem solving groups, with Los Angeles County and other
government agencies, to implement cost-effective trash reduction programs;
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 tohe 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 *^ $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;
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 of CEQA;
WHEREAS, the EPA TMDL was developed pursuant to a Consent Decree approved in
that action entitled Heal the Bay, et al. v. Browner et al. 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
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Resolution 2002-45
the schedule and process to be followed under the Clean Water Act or under State law for the
proper development of TMDLs; and
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.
NOW THEREFORE, the City Council of the City of Diamond Bar, resolves as follows:
SECTION 1. 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.
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.
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.
SECTION 4. The City Clerk shall certify to the passage and adoption hereof.
PASSED, APPROVED AND ADOPTED THIS 18t1DAY OF June , 2002.
ATTEST:
Lynda Burgess, City Clerk
227/065121-0067
156393.03PM02 -4- Resolution No. 2002-45
I, LYNDA BURGESS, City Clerk of the City of Diamond Bar, California do
hereby certify that the foregoing Resolution was duly and regularly passed and adopted by the
' City Council of the City of Diamond Bar, California, at its regular meeting held on the 18 th
day of June , 2002, by the following vote:
AYES: COUNCILMEMBERS: Herrera, Huff, Zirbes, Mayor Pro Tem
O'Connor, Mayor Chang
NOES: COUNCIL MEMBERS: None -
ABSENT: COUNCIL MEMBERS: None
i
ABSTAINED: COUNCIL MEMBERS: None
I
Lynda Burgess, City Clerk,
City of Diamond Bar
D
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Resolution No. 2002-45