HomeMy WebLinkAboutAgenda Report - April 4, 2012 C-11AGENDA ITEM Co
M� CITY OF LODI
COUNCIL COMMUNICATION
Im
AGENDA TITLE: Authorize the Mayor, on Behalf of the City Council, to Send a Letter
of Support for H.R. 3544- Litigation Reform for Cities (McClintock)
MEETING DATE: April 4, 2012
PREPARED BY: City Clerk
RECOMMENDED ACTION: Authorize the Mayor, on behalf of the City Council, to send a letter
of support for H.R. 3544 - Litigation Reform for Cities (McClintock).
BACKGROUNDIN FORMATION: The City was recently asked by a citizen to support H.R. 3544
pertaining to litigation reform for cities and send a letter of support
regarding the same to Congressman McClintock.
H.R. 3544 was introduced by Congressman McClintock to amend the Federal Water Pollution Control Act
to limit citizen suits against publicly -owned treatment works, to provide for defenses, to extend the period
of a permit, to limit attorneys' fees, and for other related purposes. The full text of the proposed legislation
is attached.
For these reasons, it is recommended that local governments support the proposed legislation.
FISCAL IMPACT: Not applicable at this time.
FUNDING AVAILABLE: Not applicable at this time.
Rand! Jo
City Clerk
APPROVED: " Ak -
v Konradt Bartlam, City Manager
Is] 111WK4101110rQ111
JOANNE MOUNCE, Mayor
ALAN NAKANISHI,
Mayor Pro Tempore
LARRY D. HANSEN
BOBJOHNSON
PHIL KATZAKIAN
April 4, 2012
CITY OF LODI
CITY HALL, 221 WEST PINE STREET
P.O. BOX 3006
LODI, CALIFORNIA 95241-1910
(209) 333-6702 / FAX (209) 333-6807
www.lodi.gov citvc1erkC@1odi.gov
Honorable Tom McClintock
428 Cannon House Office Building
Washington, DC 20515
Via Facsimile: (202) 225-5444
SUBJECT: H.R. 3544 — LETTER OF SU
Dear Congressman McClintock,
The City of Lodi is pleased to provide this letter
amend the Federal Water Pollution Control Act
owned treatment works, provide fO',odefenses,
attorneys' fees, and for other related purp'Oses.
KONRADT BARTLAM,
City Manager
RANDI JOHL, City Clerk
D. STEPHEN SCHWABAUER
City Attorney
q for H.R. 3544: which would
citizen suits against publicly -
:he period of a permit, limit
As you may be aware, the City of Lodi is located %rr�th¢ral°`valley amidst wine country.
Since 1923, the City has, been providing wastefivater cottection and treatment services to
the community. The corraerstor ;of the City' program, the White Slough Water Pollution
Control Facility (Whtt� Slough}tiwas originally constructed in 1966. This facility replaced
one of the oldest°`'secondary Treatment facilities --;in the Western United States. White
Slough provides the City gwith a�rneans to achieve water quality standards required for the
protection of the environmentally sens4tivsecramento-San Joaquin Delta. In addition,
the City is ;ir the process of obnstructing0.`a new treatment plant which will continue to
serve the community''welle into th&i future. The reforms set forth in H.R. 3544 will assist
local =taxpayers and theaCity in ke6pirig unnecessary litigation -related costs down while
focusing o iAhe needed obekations.and maintenance of the facilities.
For these reasons, the City of Lodi is pleased to provide this letter of support for H.R.
3544.
Sincerely,
JoAnne Mounce
Mayor
C: Stephen Qualls, League of California Cities
File
Randl Johl
From:
Randi Johl
Sent:
Monday, Mard► 26,2012 09:25 AM
To:
Randi Johl
Subject:
FW: Please Support H.R. 3544 (Litigation Reform for Cities)
-----Original Message -----
From: Janice Magdich
Sent: Nkn 3/12/2012 3:29 PM
To: Rad Bartlam; Steve Schwabauer;Wally Sandelin
Subject: RE: Please Support H.R. 3544 (Litigation Reform for Cities)
I don't see any red flags. The legislation amends the Federal Water Pollution Control Act
to among other things, limit citizen lawsuits against publicly owned treatment plants to
actions involving significant non-compliance (as defined by EPA guidelines); provide
additional affirmative defenses for discharge or damage that are the result of an act of
God, act of war, or act or omission of third party; limits on the recovery of attorneys
fees recoverable by plaintiff to the prevailing rate in the community where the publicly
owned plant is located; and extends the term of permits for publicly owned treatment
facilities from 5 to 15 years.
Janice
-----Original Message -----
From: Alex Aliferis [mailto: aaaliferi s@ yahoo. com]
Sent: Thu 3/8/2012 3:03 PM
To: Rad Bartlam
Cc: aaaliferis@yahoo.com
Subject: Please Support H.R. 3544 (Litigation Reform for Cities)
Dear Mr. Bartlam,
Please, I urge the city of Lodi to look at H.R. 3544. HR 3544 by Congressman Tom
McClintock (R -CA) deals with litigation reform
for cities in relation to wastewater treatment plants.
The city of Colfax supports H.R. 3544 in addition to El Dorado County. I am sure other
cities agree with H.R. 3544.
As a citizen, I urge the city of Lodi to send a letter to Congressman McNerney asking
for
his cosponsorship and support of H.R. 3544, if you agree with this legislation. This is
needed
reform that won't burden Lodi Taxpayers from future settlements. These settlements end up
costing
the citizens in term of high fees and taxes.
Litigation reform is long overdue.
Sincerely,
Alex Aliferis
505 E Locust St.
Lodi, CA 95240
1
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U.S. GOVERNMENT
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112TH CONGRESS � • Re 3544
IST SESSION
To amend the Federal Water Pollution Control Act to limit citizens suits
against publicly owned treatment works, to provide for defenses, to ex-
tend the period of a permit, to limit attorneys fees, and for other
purposes.
IN THE HOUSE OF REPRESENTATIVES
DECEMBER 1,2011
Mr. MCCLINTOCK introduced the following bill; which was referred to the
Committee on Transportation and Infrastructure
A BILL
To amend the Federal Water Pollution Control Act to limit
citizens suits against publicly owned treatment works,
to provide for defenses, to extend the period of a permit,
to limit attorneys fees, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States ofAmerica in Congress assembled,
3 SECTION 1. LIMITATION ON CITIZEN SUIT PROVISION.
4 Section 505 of the Federal Water Pollution Control
5 Act (33 U.S.C. 1365) is amended -
6 (1) in subsection (a) by striking "subsection
7 (b)" and inserting "subsections (b) and (i)"; and
8 (2) by adding at the end the following:
2
1 "(i) LIMITATION FOR POTW SUITS. -
2 "(1)IN GENERAL.—No action may be com-
3 menced under subsection (aXI) by a citizen with re -
4 spect to a publicly owned treatment works to enforce
5 an effluent standard or limitation under this Act or
6 an order issued by the Administrator or a State with
7 respect to such a standard or limitation unless the
8 publicly owned treatment works is in significant non -
9 compliance, as defined in the Environmental Protec-
10 tion Agency's December 12, 1996, guidance docu-
11 ment entitled `A General Design for SNC Redefini-
12 tion Enhancement in PCS'.
13 "(2) EXCEPTION.—Notwithstanding paragraph
14 (1), no action may be commenced under subsection
15 (a)(1) with respect to a publicly owned treatment
16 works that is in significant non-compliance based on
17 a manual designation, as defined in the Environ -
18 mental Protection Agency's December 12, 1996,
19 guidance document entitled `A General Design for
20 SNC Redefinition Enhancement in PCS'.".
21 SEC. 2. AFFIRMATIVE DEFENSES.
22 Section 309 of the Federal Water Pollution Control
23 Act (33 U.S.C. 1319) is amended by adding at the end
24 the following:
25 "(h) AFFIRMATIVE DEFENSES. -
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3
1 "(1) IN GENERAL.—There shall be no liability
2 under this Act for a person otherwise liable for the
3 unlawful discharge of a pollutant from a publicly
4 owned treatment works who can establish by a pre -
5 ponderance of the evidence that the immediate cause
6 of the unlawful discharge and any damages was -
7 "(A) an act of God;
8 "(B) an act of war;
9 "(C) an act or omission of a third party
10 other than an employee or agent of the defend -
11 ant, or than one whose act or omission occurs
12 in connection with a contractual relationship,
13 existing directly or indirectly, with the defend -
14 ant, if the defendant establishes by a prepon-
15 derance of the evidence that -
16 "(i) he exercised due care in light of
17 all relevant facts and circumstances; and
18 "(ii) he took precautions against fore -
19 seeable acts or omissions of any such third
20 party and the consequences that could
21 foreseeably result from such acts or omis-
22 sions; or
23 "(D) any combination of the foregoing
24 subparagraphs.
•HIR 35441H
El
1 "(2) ADDITIONAL DEFENSES.—All general de -
2 fenses, affirmative defenses, and bars to prosecution
3 that may apply with respect to other Federal crimi-
4 nal offenses may apply under this Act and shall be
5 determined by the courts of the United States ac -
6 cording to the principles of common law as they may
7 be interpreted in the light of reason and experience.
8 Concepts of justification and excuse applicable under
9 this section may be developed in the light of reason
10 and experience.".
11 SEC. 3. WAITING PERIOD.
12 In implementing the Federal Water Pollution Control
13 Act, the Administrator of the Environmental Protection
14 Agency or a State, as the case may be, shall provide a
15 60 -day waiting period between the notice of a violation of
16 the Act by a publicly owned treatment works and the
17 issuance of a civil penalty. If within such 60 -day period
18 the publicly owned treatment works submits a viable plan
19 for correcting the non-compliance that is the subject of
20 the notice and thereafter diligently implements such plan,
21 the Administrator shall not assess a civil penalty for the
22 notice of violation.
23 SEC. 4. PERNHT LENGTH.
24 (a) IN GENERAL.—Notwithstanding any other law,
25 any permit issued to the owner or operator of a publicly
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5
1 owned treatment works by the Administrator of the Envi-
2 ronmental Protection Agency or a State, as the case may
3 be, to discharge a pollutant under the Federal Water Pol-
4 lution Control Act shall have a 15 -year term.
5 (b) CONFORMING AMENDMENT. —Section
6 402(b)(1)(B) of the Federal Water Pollution Control Act
7 is amended by striking "five years" and inserting "5
8 years, or, in the case of a publicly owned treatment works,
9 15 years".
10 SEC. 5. ATTORNEY'S FEES.
11 Section 505(d) of the Federal Water Pollution Con -
12 trol Act (33 U.S.C. 1365(d)) is amendedby inserting after
13 the first sentence the following: "With respect to an action
14 involving a publicly owned treatment works, the court, in
15 determining whether the costs of litigation (including at -
16 torney and expert witness fees) are reasonable, shall con -
17 sider the prevailing rate of such fees in the community
18 where the publicly owned treatment works is located.".
19 SEC. 6. COST BENEFIT ANALYSIS.
20 Notwithstanding any other law, any new or increased
21 treatment requirement associated with a permit issued to
22 the owner or operator of a publicly owned treatment works
23 by the Administrator of the Environmental Protection
24 Agency or a State, as the case may be, to discharge a
25 pollutant under the Federal Water Pollution Control Act
*HR 3544 Iii
G
1 shall be subject to a cost -benefit analysis performed by
2 the Administrator or the State to ensure that the costs
3 imposed on such owner or operator to comply with such
4 new or increased requirement are outweighed by the ben -
5 efit to the public of the new or increased requirement.
i❑
•HR 3544 IH