Black Diamond city attorney answers questions concerning Waste Action Project intent to sue letter

Chris Bacha, Black Diamond city attorney, addressed questions concerning a letter sent from Richard Smith representing Waste Action Project at the July 1 City Council meeting.

In the letter dated May 28, Smith, from the Seattle-firm Smith and Lowney, stated an intent to file suit against the city "for violations of the City's National Pollutant Discharge Elimination System ("NPDES") permit for discharges from the County's municipal separate storm sewer system under Section 505 of the Clean Water Act."

Some of the issues in the letter have prompted questions from residents directed at Mayor Rebecca Olness and the city attorney during public comment at council meetings.

Smith's letter stated the clean water act "provides for penalties of up to $37,500 per day for violations."

Smith also wrote the mayor and public works director could be criminally liable.

Smith stated Waste Action Project intends to file suit in 60 days, but stated in the final paragraph, "we would be willing to discuss effective remedies for violations in this letter and settlement terms."

Smith also wrote, "we suggest that you initiate those discussions within 10 days of receiving notice..."

Bacha read a memorandum from Bob Sterbank at the July 1 council meeting answering some of the questions raised.

Sterbank from the Issaquah-firm Kenyon Disend is representing the city in this action. The city has a contract with Kenyon Disend for city attorney services. Bacha also works for the Issaquah law firm.

In the memorandum Sterbank wrote the city is in compliance the National Pollutant Discharge Elimination System permit requirements.

Sterbank also noted the city has been in contact with Smith, "and is in the process of arranging further discussion of the specific issues raised by the letter, and identifying what actions, if any, WAP believes the City should take to address the letter's allegations. Mr. Smith has acknowledged that some of the letter's allegations are incorrect, because they arose from a misunderstanding of which particular year was covered by the city's past reports. Mr. Smith also acknowledged that the letter's statements of possible criminal liability for reporting misstatements was incorrect, and should not have been included."

Bacha said at the meeting there is a provision in the clean water act for penalties, but fines are "pretty rare" and a judge would rule on monetary penalties.

Sterbank also stated in the letter the city was not required to respond to the letter in 10 days, but the request is common in notice of intent to sue letters, "to provide for a timely alert to WAP so that it would not unnecessarily incur cost in preparing a complaint or taking other action...."

Sterbank wrote the attorney was contacted by the city, but Smith was out of the office on vacation until June 23.

According to Sterbank the city staff will report back to the council on any further action necessary.

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