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Settlement reached in Clean Water lawsuit against city of Molalla

SUSAN HANSEN - Bear Creek in MolallaMolalla conservation group, Bear Creek Recovery, and local landowner, Susan Hansen, secured federal court approval of an agreement to settle the group’s lawsuit against the city of Molalla for violations of the Clean Water Act.

The agreement is the result of more than eight months of negotiations between the city and Bear Creek Recovery in an effort to resolve the lawsuit outside the courtroom.

The consent decree was signed Sept. 4 by United States District Court Judge Janice M. Stewart.

Bear Creek Recovery and Hansen filed the lawsuit against the city in March 2014.

The lawsuit sought a resolution for the city’s history of violations caused by poor maintenance and operation of the sewage plant and failing infrastructure, said attorney Maura Fahey of Crag Law Center in a press release.

“We needed a lawsuit to make the city of Molalla stand and address all the problems they have been ignoring,” Hansen said Wednesday.

The settlement agreement will require substantial work by the city over the next three and a half years to better manage its sewage wastewater and to improve current operating conditions at the treatment facility, Fahey said.

As part of the agreement, the city has committed at least $250,000 in funds over the next two years to remove at least some of the buildup of sewage sludge from the facility’s treatment lagoons and to inspect and repair failing sewer lines throughout the city.

To comply with the decree, said Molalla City Manager Dan Huff, the entire $250,000 may not be needed in addition to money currently budgeted for biosolids removal.

“That’s not the city’s math,” Huff said Wednesday. “We have the consent decree that requires us to do some things we’ve started to do, such as biosolids removal. And since I’ve been here – two years – we have had some funding in our budget for biosolids removal.”

The agreement also requires the city to conduct additional monitoring and management of its recycled water irrigation practices on nearby fields, particularly the Coleman Ranch property. Bear Creek Recovery members are hopeful that these additional restrictions and requirements will lead to long-term solutions to the city’s Clean Water Act violations and will protect public health and the environment in the Molalla area.

As part of the agreement, the city will maintain the key permits and planning documents for the wastewater treatment facility on the city’s website to be available for public review. The city is also required to post monthly monitoring reports to the website after those reports have been submitted to the Department of Environmental Quality. Bear Creek Recovery negotiated for these requirements as a means for improving transparency of the city’s operations to the general public.

Also, for any violation of the agreement during the time the consent decree is in place, the city agreed to pay $500 a day into a fund dedicated to repair and improve the city's wastewater systems. Such payments are due and payable within 30 days from the discovery of any violation(s).

The payments would be allocated for the city's engineering consultants for future work towards the completion of the biosolids removal program or to the Inflow and infiltration control program, but these funds would not count towards the city's funding obligations.

So, instead of having a fine that would go to a Watershed Council, the money would be used to fix the direct problems.

The proposed settlement agreement was approved by the Molalla City Council on July 8, 2015 and was signed by Huff and Mayor Debbie Rogge. The agreement is now final after a mandatory review period by the U.S. Environmental Protection Agency and Department of Justice and approval by the federal judge. The agreement binds the city of Molalla for three and a half years.

Bear Creek Recovery and Hansen are represented by Crag Law Center, a public interest environmental law firm based in Portland. The city is represented in this case by Ring Bender McKown & Castillo, LLLP, of Portland, and consulting attorneys in Florida and Pennsylvania.

Hansen said the city could have saved thousands of dollars in legal fees by agreeing to settle early on. “When our lawyers sent out the two-month intent to sue, the city had a two month window to negotiate and would probably have ended up with the settlement we’ve got,” Hansen said.

Huff agreed that an early settlment would have resulted in much smaller legal fees. “We wanted to pursue negotiations early on, but that did not come to fruition,” Huff said.

Asked how much the city spent on legal fees before reaching a settlement, neither City Finance Director Heather Penni nor Huff provided an answer to phone or email requests by 5 p.m. Friday.

“It wasn’t cheap,” Huff said. “Those are monthly costs that go on and on. But there was a settlement. We didn’t have to go through litigation. Lawsuits are expensive for government. This is taxpayer money that we should have spent on other things.”

The lawsuit was the second of its kind brought against the city for Clean Water Act violations at its sewage treatment plant.

The first lawsuit, brought in 2006, also resulted in a settlement agreement that required the city to comply with its Clean Water Act permit and federal law. That agreement expired in 2009, and according to Bear Creek Recovery, the city subsequently resumed its pattern of violations.

“I d like people to understand that neither Susan Hansen nor any members of Bear Creek Recovery are making money on this,” said BCR Chairman Harlan Shober. “As per of the agreement, we expect to be reimbursed from the settlement agreement for our out-of-pocket expenses, but that’s it.”