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HomeMy WebLinkAbout2007-04-09 07-144 ORDERItem No. 07 144 Data: 49-07 Item/Subject: Order, Authorizing Execution of a Content Decree with Citizens Communications Company, and the State of Maine Responsible Deyacment: Legal Commentary: in November 2002, the City file! suit in U. S. Disthct Court against Citizens Communications alleging that Citizens contributed to pol Won of the Penobscot River. The District Court established a three-phase procedure for trying the case where Phase I addressed liability as between the City and Citizens, Phase II would select the method of clean up, and Phase III would address the potential liability of additional third parties named by Citizens. After the Phase I trial, the Court found Citizens fie% liable and the City 40% liable for remediation of the pollution. In February 2007, the City and Citizens reached a Settlement Agreement ro remNe their rights to appeal Muse I, their rights to try and appeal Phase II, and their rights against [hind pares. The State of Maine owns the land underlying the Penobscot Rlver In Its sovereign capacity, and the Maine Department of Environmental Protection (DEP) a an agent of the State charged with controlling pollution of air, water, and land In the Statte and Is authorized and directed to Investigate and evaluate rtes where hazandous substances are located, to designate such sites as uncontrolled hazardous substances sites, and th take action to abete, clean up or mitigate the threats or hazards posetl by hazardous sites. On March 3, 2004, the DEP designated the Ste as an uncontrolled hazardous substances site and alleged that the City and Citizens are Jointly and severally liable to remediate it The DEP, City, and Citizens have partlpated In discussions with DEP regarding remetlles for the Site. To resolve all claims by DEP for past and future response costs and Injumtive relief arising out of or related m the pollution in the PerbscM Ricer, to fuM1I a condition of the February 2007 Settlement Agreement between the City and Citizens, th resolve the Issue of liability, and th of move fornard with the cleanup, the parties have negotiated a Consent Decree. This order authorizes the City Manager execute a Consent Decree With Cittrem and the State in the matter of City of Bangor v. Citizen Communications Canpam/. The Consent Decree Is on file In the office of the City Solicitor. Department Head Managees Comments: 1 P^""a'o'Qa "A p.nr elr6 k�'ik mRadw'f i'ti �p � ZdiNntB City Manager Associated Information: Budget Approval: Finance Director Legal Approval: City Solic[ar Introduced for X Passage _ First Readmit Page— of-Referral IN CITY COUtlCIL April 9, 2007 Panora - 07 144 cxxY cceNx Assignetl b CowcJm palm[ April 9. 2007 I�_ T CITY OF BANGOR (Trf E.) Order, Authodzing Execution of a Consent Decree with Ciburs Communications Company and the Stare of Maine WHEREAS, in November 2002, the City of Bangor filed wit against Citizens Communications Company alleging that Citizens conMbuted to pollution of the Penobscat River (the Site) in a lawsuit in the United States District Court for the District of Maine styled City of Bangor, Maine v. Citizens Communications Company, at al., Civil Action 02- 1838-S; and WHEREAS, the District Court established a three-phase procedure for litigating the issues undeiwhich Phase 1 would address liability As between the City and Citizens, Phase II would address selecting the method of clean up for the pollution in the Penobscot River, and Phase ID would address the potential liability of additional third parties named by Citizens in the lawsuit; and WHEREAS, after the Phase I trial, the Court found that Citizens was 60% liable for the remediatlon of the pollution in the river and that the City was 40% liable; and WHEREAS, me City and Citizens reached a Settlement Agreement W resolve their rights to appeal the Phase I judgment, doeir rights to try and appeal Phase H, and their rights against the third parties; and WHEREAS, the Settlement Agreement is cmditianed upon the negotiation of a consent decree with the Maine Department of Environmental Protection (DEP) acceptable W the parties; and WHEREAS, the Cry, Citizens, and DEP have negotiated a proposed Consent Decree, a copy of which is on file in the Office of the City Solicitor; and WHEREAS, the Stare of Maine is a sovereign State which owns the land underlying the Penobscot River in its sovereign capacity; and WHEREAS, DEP is an agent of the State of Maine charged with the responsibility of controlling pollution of air, water, and land in the State of Maim and is autharized and directed to investigate and evaluate sites where hazardous substances are located, to designate such sites as uncontrolled hazardous substances sites, and to take action to abate, clean up, or mitigate the threats or hazards posed by hazardous sites; and WHEREAS, on March 3, 2004, the DEP designated the Site as an uncontrolled hazardous substances site; and `I7 144 WHEREAS, the State of Maine has alleged Mat the City of Bangor and Cltlzens Communications Company arejolntly and severally liable W dean up the Site; and WHEREAS, the DEP, City of Bangor, and C lizens Communication Company have participated in discussions With DEP regarding remedies for the Site; ant WHEREAS, In the Interest of resolving all claims by DEP for past and future response costs and injunctive relief arising out of or relatetl to the pollution in the Penobscot River, in the Interest of fulfilling a condition of the Settlement Agreement between the City of Bangor and Cltbens Communimbons Company, In the Interest of resolving one issue of liability, and in the interest of moving forward with the cleanup of the pollution at the Site, the parties have negotiated a Consent Decree. NOW, THEREFORE, BE IT ORDERED BY THE CRY COUNCIL OF THE CITY OF BANGOR THAT Me City Manager or, at his direction, mussel represerrong the City in this IitigMion, is hereby authorized W execute a Consent Decree with Citizens Communications Comparry and the State of Maine and the Maine DepaNnent of Environmental Protection in the matter of City of Bangor v. Citizens Communications Company, et al., Civil Action 02-183-13-S (D.C. Me), In the form currently on file in the Office of the CM Solicitor. MCI" 0006CIL Aril 9. M IL lbtian Mase a� Seconded p 07_1" L forAassme pa dd�,(gJ� ORDER l R [�— (f1TLEJ AUMorizine weecutiaa of a Consent Decree with CStiieoa Coammunieatinm, l�