HomeMy WebLinkAbout1990-08-27 90-313 ORDERDate 0.20-90V Item No. 90-313
Item"
W m/Subbct Authorizing Execution of Scope of Services Agreement
'th lord Day & Lord, Barrett Smith - Sewer Project
Responsible Department Legal
Commentary:
The purpose of this Order is to authorize the execution of
the final agreement negotiated by the City Manager for legal
services by Joanne W. young in pending litigation between the
City and the United States Environmental Protection Agency.
Oe rnn
Manager's Com ms:
Ovnnsca�rk, hamw, ��,/f.
a�a of s cirk o ��i r sr- rr btu bcm 9m naii c, wu
cay ma„nye.
Associated Information:[[
af�ri cMMI
Butlget Approval:
Flamm Dirc
Legal Approval:
;.y se ,dror e
Intro red For
;P sage
0 First Reading page _ of
❑ Referral
90-313
Assigned to Counaor Stone, August 27, 1990
:!ra CITY OF BANGOR
(TIRE.) (®rber Auth ,ng gxacution of Scope I of Servtcan Agreement
with Lord,Uay 6 Lord, Barrett Smith - Sewer Project
By the aty CsuncU of W aty of Bangor:
ORDERED,
THAT the City Manager is hereby authorized and directed
to execute on behalf of the City of Bangor a Scope of Services
Agreement, a copy of which is on file in the office of the
City Clerk, providing for legal s in the pending
action entitled USEPA V. City of Bangor•
IN CITY COUNCIL
August 27, 1990
Passed
ERK
90-313
ORDER
Title,
AutnOrizin� Eae.cut410n of S..Fe of
Services Agreement with Lord nay 5 Lard,
. Barrett .... ...Sm....itfi .-..S.ex..e.r.Pr.O......ect...........
Amigned tm
......................................
Councilmen
SCOPE OF Si MIeFS ACRESNINT
90-313
The firm of Lord Day and Lord, Barrett South Dhall provide the following
services foo the City of Seager in me matter of Vnited. States v City of Sencay
at al:
1. Review all documents Cete:mined by tium to be relevent :sitting to the
federal and state enfomonent actions i„clud og;
a. Ali c respondence between the City and the Federal Government
regarding the end diacbar9e problem and the Consent Decree as well asall
internal ccrteepond6Cce between the City Solicitor, the City Council and fierce,
Atwood;
b. All relevant csrespondence between the City and the State of Maine
involving the negotiation of the State Consent Conroe as well as all internal
correspondence between the City Solicitor, the City Council and pierce, Rtword;
The State Consent Decree and any administrative orders issued by
either the federal or state environmental agencies;
d. (1) Discharge monitoring reports and water quality sampling
egOrts submitted by the City to the State of Mine or the ETA Region I office
for the Xendusksag Stream and Penobscot River conducted pursuant to its 1986
Speed Permit, (2) the 1981 and 1966 permit files, including the Permit
application, "Fact Sheet" and Any contents made during the public c -ant period,
e
(3) all enforcement records pertaining me the two permits and (4) Allwater
quality reports filed by the RPA and the state Of Mn r the Henduekeeg Strewn
and Penobscot River pursuant to Section 304(1) of theFederal Clean Nater Aat;
sThe Decanter 1987 Preliainaty Saver Syet= Evaluation Report, the
1988 Sewer System Evaluation Report, Pre -Treatment Plan for Industrial Veers of
Bangor's POTN, and any other dccmente repeating On any bonanzas that the city
has taken to eliminate or mitigate CSO discharge or relating to secondary
treatnany
f. All available water quality reports and discharge monitoring
reports of upstream dischargers to evaluate the water quality impacts Of these
dischargers;
9. Such other documents or information as may be necessary in light of
the ongoing review,
A. Any other documeata referenced in the attachment to the July 31,
1990 memorandum which is attached to this agreement.
2. Reaas
rch the legal basis f r the relief r ted by the Jassice
Department and develop the legal poz :Soo that the city can req+ired to
undertake only each rsme61al actions as are consistent with federal and state Cie
and water quality policy. Such research will i closeaereview f the cars law,
documents,uartlnant regulatin'2,. guidance docrnts, legislative history and other
which may be necessary.
2. Review the proposed Convect Dames againstant consent
decrees entered into by the united States with other municipalities, c _r
C50 Partnership are similarly sirwated groups to felly ar - interim actions
and reme21e1 ataken a
by c a - and corpora proposed
Consent Causes ac-natstate andfede alguidancedocumente, draft marked -up
coneent decree and see ting explanatory docucants, and review changes with
appropriate City staff.
4. Moet with City technical staff to discuss sewer treatment plant and are
unk that has occurred to date and feasible interim measure$ that may be
dertaken, discuss PCri design to determine if C50 interim measures 'can be
incorporated into Port design and en -site four f Csoa and ergciog sewer
projects. we will also prepare City technical staff for a meeting withV.S.
Government officials should such meeting appear likely.
S. Met with Justice Oepart.rmnt officials o a preliminary and exploratory
basis, possibly followed by a ¢ting between city technical_ staff and V.S.
goverment technical people and, thereafter, meetings to negotiate an agreement
n final Cement Course language.t _rm will also Seek dismissal Or mitigation of
the pending $40,000 civil penalty.
6. Mork as liaison to the False Congressional Oalegation regarding
aropriato assistance with negotiation of Outstanding issues and elimination of
Se
civil p nalty. such efforts to S ertakenucoordination with and open
approval of the City. nonitor Congressional anregulatory developments
affecting C50 guidance and zeralrement5.
Pierce Atwood firm is available to firm is connection with our
familiarization with the case.
The City wishes to maximi2a the u f Simla appropriate resucroas while
wtrolling coats to the largest extent possible. To this and, firm will use
City staff and r6sourcea
whenever pcezihle, and wall faces its review cn documents
relevant to the current Issues under negctiationa.
Finn will make eery effort to certain coand estimates that the
n
foregoing taeka can boa cmplished at a set cexceed $100,000. It i
mutually recognized that while the foregoing �represents the best estimate of
511 fees, Ind ¢ cry effort will be made to minimize c matancee may
Lev lop which would n n
necessitate fl adjuet ntto this figur such as th's
occurrence of new teveleprexs i ine applicable came law. legalac ion, o
regulations, lube read t additional documents, t negotiectona becoming
mere complex and time-consuming than currently envisioned, er the emergence of
2-
now technical issues as the negotiations develop. in that event, the City would
be nctifled and cn sulted regarding the extent to which -the fee estimate will
sad to be ra _sed.' We agree to notify tha city c reach the level o.
VS,000, and o e fees reach the level of $100,3CO, furt ererh wcald be
undertaken only upon approval of the. city.
This agreeea^.t Shall automatically terminate e n final agroeerent by the
City and the U.S. Gova:nnentt a Consent Decree as submission of the consent
Decree to -the Court for approval in this matter. Firm will was
s its very been
efforts to Obtain final approval of the Consent Decree by theCity Intl U.S..
Covernmert on or before November 12, 1990. If agreement has not bean reached on
Consent Decree by that time, this agreement shall autonaticaily terminate &a Of
December 1, 1990. At its option, City of Bangor may extend this agreement beyond
.dation data on a Death by month basil. City will supply firm with the
documents referenced in the attachment to our July 31, 1990 memorandum as soon as
possible.
THER SCRVIC
At its cation, the City may reguaat additional services farm firm regarding
other items relating to the City's Bever System and federal lav, regulations,
acct=ams and pecsonwel.r example, firm could assist the City in negotiating
iasues .that a likely to arise in tho 1091 permit negotiations and proceedings
as alogical E s here. Should a request D , Bangor
will - estimate ofcastsfor such serviceabased ostandard billing
rates outlieadnln firm's letter of Suly 30,-1990we alsoWillexplore possible
funding opttond available to the City to finance DSD projects if the city wishes
this done, and would co _nate with the Maine Congressional Delegation for their
further auppert on this issue. _
eTMFR MATTBkO.
Firm representative for this prosect rhall be Joanne W. young.
City represent blve far this project shall be Edward A. Barrett. other City.
personnel will be made available to assist as needed.
The City shall be bill IS cannily for services. Cut of pocket costo shall be
billed separately from the referenced estimated fees. Billing shall include
specific description e. of the title performed and the unt of t andfees
expended. A exeLfie dela Latien of costa such am telex, telephone,
3-
17 LZCI� P FA
tran*portation, a r chargee, a will also be Included in C1111nga. Cha[gea
will be paid withintb dais cf City's receipt cf otatecent.
Yia-,-�'
Approved for the City of Bangor Ln -10 W.Ofo ung
by Bdvazd A. Barrett, City Manager Lord pay a ford. Bae¢tt Sa:th
Date Auwet ll, 1990
-a-
Jm 10, 1991
TO: p llcP.ama, City Cleric
Pr: Sara Ibbb , Aievisits w Aeeiata�t
Fe: Cauca 0 ler 90-313
Attaoled please £fffi an orifi n e:recvtsl F of rile Scope of S�vic®
syeaoent City of Sangr a food my Iord, eatxett SodUi. This
should be filed Mt Council Older 90-313 Wtich xm Pasesl by CouncU on
August 27, 1990.
AttulverR
FI`•l'li•]
The firm of Lead Day and Lord, Barrett Smith SM11 provide the followfn9
Services for the City of Bangor in the matter of United States V. City of Bangor,
at al:
1. Review all documents determined by firm to be relevant relating to the
federal aM state enforcement actions including:
a. All corremponderre between the City and the Federal Government
regarding the Cao discharge funnies and the Consent Decrea am well as all
internal correspondence between the City Solicitor, the City Council and Pierce,
Atwood;
b. All relevant correspondence between the City and the State of Maine
involving the negotiation of the State Consent Decree am well as all internal
correspondence between the City Solicitor, the City Council and Sierra, Atwood;
C. The State Consent Decree and any administrative ordersissued by
either the federal or state environmental egencieD,
d. (li Discharge monitoring reports end water quality sampling
reports submitted by the City to the State of Maine or the EPA Region I office
for the Kemduskeag Strauss antl Penobscot River conducted pursuant to its 1956
NPDES permit, (1) the 1981 and 1986 permit files, including the permit
application, "Pmt Sheet' and any commence made during the public comment period,
(3) all enforcement records pertaining to the two pa[mitc end (4) all water
quality reports filed by the EPA and the State of Mine for the Rendumeag Stream
and Penobscot River Easement to Section 304(1) of the Federal Clean Water Art;
0. The December 1950 Preliminary Sewer Syetmm evaluation BepOrt, the
1988 Sewer System Evaluation Report, Pre -Treatment Plan for Industrial Users of
Bangor -a POTS, and any other documents reporting on any measures that the City
has taken to eliminate or mitigate CSO discharge or relating to secondary
treatment;
f. All available water quality reports and discharge monitoring
reports of upstream discharger$ to evaluate the water quality impacts of these
diochargare; -
g. Such other documents or information as may be nacameacy in light of
the ongoing review;
h. My other documents refereacad in the attachment to the July 31,
1990 memorandum which Is attached to this agreement.
]. Research the legal basis for the relief requested by the Juatice
0epfl[bmnt and tlev01op the legal position that the City can be required to
undertake only Such remedial actions as are consistent with federal and state CSO
and water quality policy. Such research will "clods a review of the case law,
pertinent regulations, guidance documents, legislative history and other material
which may he necessary.
3. Review the proposed Coneent Course against other relevant Consent
decrees entered into by the United States with other municipalities, Consult with
Can partnership end Similarly Situated groups to fully explore interim ctlone
and rseenial actions taken by ether communities, review and compare proposed
Consent hearse against state and federal guidance documents, draft marked -up
consent decree and supporting explanatory documents, am review changes with
appropriate City staff.
6. Meet with City technical staff to discuss Sewer treatment plant and Can
work that has occurred to date and feasible interim measures that may be
undertaken, discuss FOSW design to determine if G5O Interim measures can be
incorporated into POW design am on-site tour of CSOe and ongoing
sweet
projects. We will also prepare City technical Staff for a meeting with U.S.
government officials should such meeting appear likely.
S. Meet with austtce Department officials ona preliminary and exploratory
basis, possibly followed by a meeting between City technical staff and V.S.
government technical people and, thereafter, meetings to negotiatean agreement
n final Cement Corse language. Firm will also seek dismissal or mitigation of
the pending $90,000 civil penalty.
6. Mork as liaison to the aging Congressional Celegation regarding
appropriate assistance with animation of outstanding issues and elimination of
civil penalty, such efforts to he undertaken in coordination with and upon
approval of the City. Monitor Congressional and regulatory developments
affecting Cao guidance and requirements.
PiRms, Atwaod firm 1s available to firm in comeoticn with our
familiarization with the case.
WETS
The City wishes to maximize the me of firm's appropriate resources, while
controlling costs to the largest extent passible. To this end, fire will use
City staff and resources whenever possible aid will focus its review on documents
relevant to the Current issues under negotiations.
Firm will make every effort to contain testa, and estimates that the
foregoing make can be accomplished at ptsot teexceed $100,0e0. it is
mutually recognized that while the foregoing represents the beet estimate of
legal fees, am every effort will ba made to minimize mate, circumstances may
develop which would necessitate an
adjustment to this figure, such as the
occurrence Of new developments in the applicable case law, legislation, o
regulations, the need to review additional docamanta, the negetiatione booming
more complex and time-consuming than currently envisioned, or the emergece of
new technical issues as the negotiations develop. In that event, the City would
be notified and co sultan regarding the extent to which the fee estimate will
need to he revised. We agree to notify the City once fees teach the level of
$75,000, and once fees reach the level of $100,000, further Mork would be
undextaken holy upon approval of the City.
This Agreement shall automatically terminate upon final agreement by the
City and the O.B. government to a Comment Cancan end Submie6 ion of the Consent
sworde to the Court for approval is this matter. Firm will u e its very beet
efforts to obtain final approval of the Consent Decree by theeCity end C.S.
government on or before November 13, 1990. If agreement has mat teen reached o
Consent Decree by that ties, this agreement shall automatically terminate a oI
Decmber 1, 1990. At its option, City of Bangor may extend this agreement beyond
termination data on a math by month basis. City will supply firm with the
documsnte references! in the attachment to our July 31, 1990 cemeteries as seen am
possible.
CSMER SERVICES
At its optica, the City may request additional services free firm regarding
other It me relating to the City's Sewer System and federal law, regulations,
programs and personnel. For example, firm could assist the City in negotiating
issues that are likely to arise in the 1991 permit negotiations and proceedings
as e logical extension to Services here. Should such request be Sada, Mager
will receive ann
Marinate of mats for such Service based a standard billing
rates outlined in fim'e letter of only 30, 1990, we Alma will explore possible
funding options available to the City to finance CST projects if the City wiaMe
this does, and would coordinate with the Maine Congressional Delegation for their
further support on this issue.
OTHER MATTERS
Fire representative for this project shall be Joanne W. young.
City representative for this project shall be Edward A. Barrett. Other city
personnel will be mala available to assist as needed.
The City shall be billed monthly for services. Cut of pocket coats shall he
billed separately free the referenced estimated fees. Billing Shall include a
specific description of the tasks performed end the Amount of time And fees
expended. A specific description of costs Such as telex, telephone,
- 3 -
transportation, caution chargees etc, will also be inoluE in billings. Chargee
will be paid within 30 days of City's receipt of etat®ent
4-
Date A amt 17. 1990
Wird
Date A amt 17. 1990
MADRID!
Benoci Document List
1. WC preliminary, review was based on the selected roplec
of roaeepaMaroe furnished to us by The City. In ceder to gain a full
undsrstendtag of the history of this matter, ad will have to review any
and all copies of correspondents
rp Mnwed
reses between the City athe federal
govern"nt regarding the C80 discharge problem and the Consent decree:
2 Likewise, wo will need ter review any eon all
iresppgondevice between the City ant the state of Maine involving the
negotiation of the state comment decree which preceded the federal
enforcement action.
3. W also no" to rwlw a eo9mlete COST, of the State
Consent Cecrs, In order t0 evaluate the extent that his document
satisfied the national and state CSO pallciea;
G. Toa certain the legitimaop of the federal enforcemenE
Vesely, ue :wad t0 examine copies Of all (a) Olecharge Menitocing Asports
and water quality aamplLy repOKe sub ittel by the City to the State Of
Mems Or the SPA Region I Offiro for the Aendunkeap Strom and Penobscot
River coodta ted pursuant to its 1986 NPOAB pernit, (b) the 1981 and 1986
parnit filet, 1oCle4iog the permit application, 'Fact Shead' and any
Comments mads during the public consent patina, ant (0) all onforcement
records pertaining to the two prmite)
S. To evaluate Ra pr•s cmpuance with its pemmit
Conditions, we need to review the (s) December 1987 preliminary Sewer
SySten evaluation Rupert, (b) 1980 Hower Syst® 8valuation Reprtr (c)
Pre -Treatment Plan for Industrial Deere of eangnr•e PoTa, end (i) 1990
Preliminary Design Report(
6. Cut review of the dooddenta provided t0 us lndieatea SPA
provided the following "formation to the City prtalnlnq the issue of
selective enforcement which we would like to review: (a) consent Vanessa
entered into by United States with Now Bedford ant Sv mpecatt,
NaeeachuSAtta and (b) the Lymmr BaeeachuSette Combined Sewer Overflow
Pacllltles Plan: Phase I Report On Scremlug Alternatives (April 1980)
and Interim Report on Design Storms and Seto[ yuallty Ndnitottng (Notch
1989)(
7. Ms also need Copies of all pleadinge in the 11t19ationC
8. Finally, we mad to Obtain information from the State of
Maine and to Carlos any Construction grant applications that the City may
have filed to detarnlm Title II funding is available to fissure C80
studies ant rehabilitation.