HomeMy WebLinkAboutCC EXECUTIVE SESSION MINUTES 08111987 Meeting Sheet
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Folder. CC MINUTES AND AGENDAS 1987
Document: CC MINUTES 08111987
• C 2 TY OF S T _ ANTHONY
M=NUT E S OF COUN C 2 L
EXECUTIVE S ESS 2 ON W I TH ATTORNEY S
AU GUS T 1- 3- 1- 987
1. The Briggs and Morgan briefing/update on litigation against the U.S.
2 Army et al related to water contamination originating at the Twin Cities
3 Army Ammunition Plant was opened at 6 : 30 P.M.
4 Present: Marks , Ranallo, Enrooth, Makowske.
5 Absent: Sundland.
6 Also present: David Childs, City Manager
7 David McDonald and ,john Van DeNorth of Briggs and Morgan
8 Mr. McDonald gave an overview of what had been reported in the.
9 newspapers and discussed at the last Council meeting related to the
10 Army' s agreement with the State of Minnesota to conduct a clean-up of
11 contaminated water emanating from the TCAAP with which the attorneys
12 said they had been involved. The attorney said the most recent meeting
13 he had attended on the City' s behalf had been the City officials' short
•14 meeting with Congressman Sabo that morning.
15 Mr . McDonald said recent events of importance would be that his firm had
16 submitted a Settlement Demand at the direction of Special Master Brian
17 Short,' including a separate section on St. Anthony damages, which the
18 attorneys had developed with the City Manager and other people in the
19 City. A large portion of the demand included claims of the Mengel Koch
20 Rendering Co. and claims of individual citizens, he said.
21 Mr. McDonald said further:
22
23 *at Council direction, his firm had tried to intervene in the
24 New Brighton suit a month and a half ago, but Special Master
25 Short disagreed with that attempt, saying he perceived the
26 settlement negotiations were moving along between the Army and
27 New Brighton and New Brighton people had expressed the opinion
28 St. Anthony might "muck that up" ;
29 *the Special Master had indicated he perceived there wasn' t enough
30 overriding benefit in letting the City get into their case;
31
32 *on the other hand, the Special Master had some good things to say
33 about the City' s attempts and said he couldn' t see- why New
34 Brighton was fighting St. Anthony so hard;
35 *Special Master Short had given the impression that the law had
•36 3
kind of tied his hands and if he had more flexibility he would
7 have let the City into the case; because
38 *at the end of the hearing, he had directed the New Brighton at-
39 torneys to give St. Anthony' s attorneys at least some information
40 about what they were talking to the Army about.
2
1 Briggs and Morgan' s pitch was basically that the City needed to get into
2 the case so the City could find out what impact the clean up in New
3 Brighton and area-wide would have on St. Anthony.
4 *the Special Master was convinced by New Brighton' s arguments that
5 the City was going to have plenty of opportunity to get its
6 2 cents worth in because there would be a lot of public hearings
7 like the one the EPA is sponsoring where public input would be
8 sought;
9 *the Special master had agreed with this argument, saying "if the
10 Army and New Brighton come up with something really off-the-wall,
11 St. Anthony should be able to stop it somewhere down the road. " ;
12 *the attorneys had then argued that it would be better to let the
13 City into the suit now than to have to undo the damage later.
14 Mr. McDonald told Councilmember Marks he perceived the Special Master' s
15 decision had been a discretionary call rather than actual law. He said
16 the magistrate had realized that the City wanted more than to just
17 intervene in the suit, but also wanted to get involved in the settlement
18 negotiations. He had advised Mr. McDonald that he wouldn' t have been
19 allowed to talk during the proceedings and said, "I could let you in but
0 if they won' t let you talk, it won' t do any good because I can' t force
1 them to let you get involved in their settlement negotiations. " The
22 Master Judge also indicated that the other legal rationale against
23 letting St. Anthony in was because this was a "consent decree" and under
24 environmental law, the Federal Judge who eventually will have to approve
25 any agreement reached by New Brighton and the Army will call for public
26 comment and at least have one hearing at which the City would be able to
27 stand up and say what it has to say.
28 Mr. McDonald reported the room was filled with attorneys from the Army
29 and Federal Hoffman, etc. and after Master Short had made his ruling he
30 had called Mr. McDonald and New Brighton' s attorney, Bill Skallerud,
31 aside and told Mr. Skallerud, "I 've ruled against Mr. McDonald, but
32 can' t you tell him some of the things he needs to know, basically, are
33 you going to treat the water or are you going deep and how will that
34 effect the plume which comes down to St. Anthony?"
35 The New Brighton attorney' s response was to send the City a copy of the
36 two page letter which went to all New Brighton residents and only said
37 "the Army was proposing that New Brighton treat the groundwater. " When
38 that arrived, Mr. McDonald said he had responded with a letter to John
39 Drawz and Bill Skallerud requesting more technical information related
40 to the ten items developed by the Bruce Liesch people, which would give
41 the attorneys better knowledge on which to base their future actions to
42 help the City. A carbon copy of the letter had been sent to Special
0
43 Master Short.
• 3
1
2 Mr. McDonald reported further that:
3 *at the EPA meeting he and Mr. Childs had attended the previous
4 night, he had talked to Mr. Skallerud who had told Mr. McDonald
5 it had been at the direction of the New Brighton Council that he
6 had not answered his letter;
7 *he had received no official notification of that Council action
8 but was considering approaching the Special Master to draw his
9 attention to the fact that New Brighton was not cooperating with
10 St. Anthony as Short had directed;
11 *said he sensed Mr. Skallerud was "a little bit troubled on how he
12 was going to defend New Brighton' s actions. "
13 Councilmember Ranallo said he perceived New Brighton didn' t want to
14 cooperate with St. Anthony at all. Mr. McDonald said he didn' t know if
15 he could push the issue further but at least if a final decisions turns
16 out to be bad for St. Anthony, the City would have gone on record as
17 having never been given it. That way, the City could never be accused
18 of waiting too long to seek the information it needed.
09 Councilmember Makowske asked whether Special Master Short was the son
20 of Robert Short. Mr. McDonald said he was and added that he had
21. previously been a Federal Magistrate working for federal judges , but
22 have given up those duties to manage his family estate. However, the
23 Special Master does take special cases, including some environmental,
24 which Mr. McDonald had worked with him in the past.
25 Mr. McDonald backtracked by saying Briggs and Morgan had submitted a
26 discovery motion about six months ago related to the restrictive action
27 Honeywell was taking connected to releasing pertinent documents. The
28 magistrate at that time had been a different person than Brian Short and
29 ruled in favor of St. Anthony. The ruling was appealed to Judge Renner
30 who also ruled in favor of the City, forcing Honeywell to turn over the
31 documents St. Anthony was looking for. At the same time, the discovery
32 hearing had been held the defendants asked for the appointment of a
33 special Master because they perceived the need for someone who would
34 give individualized attention to the issues, he said. The City had been
35 worried about having to pay further costs for another judge because he
36 charges the parties for any work he does. These costs are capped at
37 $50,000 with St. Anthony having to pay 7-1/2% (or about $3 ,600.00) .
38 Mr. McDonald indicated he thought there were real advantages in having
39 Short for the Special Master, including the fact that he is a very
40 decisive person and could give more attention to the case than the
41 previous magistrate, who had too many other cases. The first judge had
W2 not wanted to take the class action case which is still pending and now
3 the City has Short, who has established a time schedule and is pushing
44
• 4
1 the case along. The timetable deadlines established by Short are
2 related to a couple of events:
3 *the defendants have filed papers to bring what is called "a
4 partial summary judgment motion" on some of the issues involy-
5 ing "conjunctive relief" which would clean up some of the things
6 St. Anthony had asked them to do, some of which are already
7 being done by the Army under the TCAAP agreement with the State.
8 The Army' s motion claims that because the State is making them
9 do these things, St. Anthony should not be able to bring similar
1.0 claims against them. Mr. McDonald indicated:
11 *this was not an attempt to dismiss the whole St. Anthony action
12 but only the claims involved in the agreement;
13 *Short had set July 15th for filing those papers which the City had
14 received;
15 *the City had until a week before the September 23rd hearing to
16 file its papers;
17 *the City' s position would be to fight the defendants' claims at
•18 least at this stage, until St. Anthony is certain what the State
19 agreement does about the clean up;
20 *the State had entered into the agreement with the Army by which
21 the MPCA would finish their investigation of the problem and then
22 the Army will look at alternatives, based on those investigations,
23 to clean up the aquifer, mainly on base, but perhaps off base;
24 *the investigatory phase would not be done until next summer;
25 *this would include the MPCA investigation off base and the Army
26 study on base, which is basically good for St. Anthony because
27 the MPCA will in all likelihood determine the plume of contamina-
28 tion reaches beyond St. Anthony;
29 *the Army will be stuck with that conclusion because they have
30 agreed to live with whatever the MPCA finds and they will have to
31 take over, starting next summer, looking at ways to deal with the
32 problem;
33 *at that time they will be forced to look at alternatives ranging
34 from no action to drilling hundreds of wells;
35 *the Army has indicated their feasibility study would be completed
36 by September or January of 1988 (Mr. McDonald doubted it would be
• 37 done by then) ;
38
39
1 .
5
•
1 *the point when these alternatives would be worked out between the
2 State and the Army and the best plan selected had optimistically
3 been established bey Y►
between May and Jul 1989 , with implementation
4 not until the end of 1989;
5 *there would be some actions taken in the meantime, including the
6 reactivation of the In-Situ-Volatilization and Boundary Ground-
7 water Recovery systems to be discussed during the August 18th
8 community meeting, but there would probably be no real remedy
9 until 1989 .
10 Councilmember Ranallo asked why the City should be spending money
11 worrying about the clean-up if the State, EPA and other agencies are
12 supervising those actions.
13 Mr. McDonald told him:
14 *the remedy that is chosen by New Brighton could have a real
15 impact on the costs of operating and maintaining the St. Anthony
16 system;
17 *that remedy could cut off the contamination flow at the TCAAP
18 site and St. Anthony would have to wait 20 years before the end
•19 of the plume reached the City;
20 *a much better system, which the City might want to advocate for,
21 would be a system which used New Brighton wells or had the Army
22 dig new wells off base between TCAAP and New Brighton to inter-
23 cept that flow farther down;
24 *the plume St. Anthony would have to deal with might then only last
25 5 , 6 , or 10 years;
26 *the state has told the City "we' re trying to help you but pri-
27 marily, we' re looking out for the State' s interest; and
28 *"what' s best for the State may not necessarily be best for
29 St. Anthony. "
30 Councilmember Marks commented that meant it was in the City' s interest
31 not to have its interests "fall through the legal cracks." He said he
32 perceived it might be necessary to have the legal consultants watching
33 to see that doesn' t happen.
34 Mr. Van DeNorth said he perceived the City could have some level of
35 comfort knowing the State has experts on their staff who are going to
36 try to engineer a good cleanup eventually,' but the City needs to keep
37 alert to make sure that technically, what they do, is in St. Anthony' s
• 38 economic interest.
39
• 6
1 Mr. Childs asked what it would cost in terms of legal terms to do that.
2 He said Briggs and Morgan' s costs up to this time were $26,573 and the
3 City' s share of using the Leisch firm was $13 ,000, for a total of
4 $39, 000 .
5 Mr. McDonald said he didn' t perceive it would cost the City much just to
6 keep an eye on things. He also pointed out it might not be good for the
7 City to have their injunctive claims in the Summary Judgment entirely
8 dismissed but it might be better to keep those pending so St. Anthony
9 can continue to have some say in the remedy strengthen the lawsuit. He
10 added that:
.11 *the City doesn' t know exactly what' s going to happen at the
12 Summary Judgment hearing September 23rd and the legal defense
13 costs of resisting that motion by the defendants would only last
14 between now and the hearing and would cease after that;
15 *the next legal expenses would be the cost of monitoring the Army
16 and MPCA input during the public process during which attorney
17 would be allowed input along the way;
18 *for instance, after the feasibility study is done, and the pre-
19 liminary list of alternatives is offered by the Army, the City
0 might want to look at those and suggest which makes sense and
1 which don' t;
22 *in other words, the City would want to try to direct the Army and
23 MPCA towards an alternative which would be beneficial for the
24 City;
25 *this would involve some attorney participation combined with City
26 Manager/Council input with Bruce Leisch.
27 Councilmember Makowske asked whether the City was providing data
28 developed by the Leisch firm to the EPA' s engineering studies tracking
29 the contaminant plume or whether the two studies would be combined
30 later.
31 Mr. McDonald told her the Leisch people have been meeting with the EPA
32 and their technical experts have met with the Army to try to convince
33 them that the plume had reached St. Anthony. The Leisch people will be
34 monitoring the off side investigative process which will be mainly done
35 by the MPCA and the EPA. Mr. McDonald said he felt fairly comfortable
36 that there was not too much in that area to worry about because the MPCA
37 have already stated that the plume had already reached St. Anthony and
38 gone beyond. He also stated he didn' t expect a lot of involvement by
39 the attorneys over the technical issues.
w40 Councilmember Ranallo said that was the point he wanted to make that it
1 might not be necessary for the City to be monitoring the process but it
• 7
1 might be only necessary to call the MPCA in three months to see what
2 further information they had.
3 Mr. McDonald agreed he didn' t see where the attorneys would have to
4 spend a lot of time on that part of the problem. He said he was more
5 worried about the point a year from now when the MPCA pulls out of the
6 process having proved the distance the plume had gone and all the
7 activities shift to the Army and they start having more control over the
8 process.. That would also be when they would be looking at what to do
9 about it and what they decide could have a big impact on the City of St.
10 Anthony.
11 He reported that after the technical meeting the City and the Army had
12 held, Mr. Leisch had commented that he perceived it wasn' t that the Army
13 intended to challenge his conclusions but only that they had not had the
14 time to look at his data. Mr. Childs said the discouraging thing about
15 that was that the Army representatives had indicated it might take them
16 a couple of years to look at the information.
17 Mr. McDonald then gave the mileposts he perceived for the process. He
18 said the Summary Judgment hearing would be first, September 23rd,
19 followed by the class action determination for which Bruce Leisch, Dr.
20 Olav Pfannkuch, the computer expert, and Ken Olson, the hydrologist, had
21. been identified as experts who would be providing the technical
022 information St. Anthony would be relying on. The attorney said his
23 firm had also disclosed on behalf of their other plaintiffs, some
24 occupational positions and issues dealing with toxology and psychiatric
25 damages which have been created for them. Mr. McDonald said the
26 inclination might be to depose technical people back and forth but
27 Briggs and Morgan thought it was better not to do that :and-Jinightf=make a
28 legal to prevent it.
29 Mr. McDonald reported all the technical papers for that hearing have to
30 be in by October 1st and Briggs and Morgan have to have all their papers
31 submitted by November 1st. Hopefully, the judge will make a decision
32 soon thereafter. The big issue for St. Anthony in the class action
33 hearing will be whether or not the plume of contamination reaches to St.
34 Anthony, but other issues like how dangerous the contaminants actually
35 are will also be determined. Mr. McDonald said the Special Master had
36 set the file discovery cutoff date for the trial for November 1 , 1988
37 and the trial date itself has been moved forward from March, 1988 , to
38 April, 1989. He said that might seem like a long way off but
39 Councilmembers should remember that even, optimistically, the Army isn' t
40 expecting to finish their investigations until late next summer.
41 Mr. McDonald told Councilmember Ranallo New Brighton had been sitting on
42 the Army proposal since last May without responding and he understood
43 they had people flying around the country looking at different
44 treatment systems. He didn' t think they would be sitting down with the
•45 Army until sometime this fall.
46
• 8
.l Mr. Van DeNorth said both the Army' s and New Brighton' s attorneys had
2 been "very closed mouthed" but he agreed with Councilmember Ranallo that
3 the Army would be settling with New Brighton before it would even
4 consider St. Anthony' s claims. Mr. McDonald said he hoped the class
5 action suit might speed the Army up. He said the Army really wanted to
6 put off everything until they had finished their investigation next
7 summer and hadn' t wanted to have the class action until then. He said
8 he perceived the Army wouldn' t deal with St. Anthony until next July.
9 Mr. Van DeNorth said his firm might have almost agreed with that but
10 they knew there would always be more slippage and July would come and go
11 and there would still be no action, delaying everything into 1990 . He
12 said part of Briggs and Morgan' s role has been to keep applying pressure
13 and the State as well as New Brighton has also been doing that. He
14 concluded it would take everybody' s efforts to get ,the Army to do
15 anything.
16 A determination in favor of St. Anthony in the class action suit would
17 force them to face the plume issue sooner, Mr. McDonald said. Mr.
18 Childs said, even if the City should lose that issue, the Army' s study
19 would continue anyway and the City would have six to eight months to
20 prepare a refutation of that study. Mr. Van DeNorth said the Army might
21 even come in and tell the judge they thought it was premature to even
022 make a decision about where the plume went before they had finished
23 their investigation next summer.
24 He indicated the City was risking that the judge would accept the Army' s
_ 25 contention that the City' s study had not been good enough but said his
26 firm had been fully convinced by the data Leisch had come up with at
27 this time. Mr. Van DeNorth said the only evidence which would be
28 really conclusive would be to dig up a lot more wells between St.
29 Anthony and New Brighton, which would be very expensive and which the
3.0 State has been unwilling to do. The next quality evidence, short of
31 hard data, is the Leisch firm' s comparison of chemicals in the St.
32 Anthony wells with the contaminants found in the New Brighton wells
33 which are matching up identically. The Attorney continued by saying by
34 computer modeling it has been determined that the contaminants have
35 already reached St. Anthony. Mr. McDonald doubted the Army would have-
36
ave36 even accepted hard data, but would have only demanded more.
37 Councilmember Makowske asked the attorneys what they estimated it would
38 cost the City to answer questions the defendants raised about the expert
39 discovery information the City had submitted. Mr. McDonald said the way
40 he understood it was that the defendants have to pay for the time they
41 interview the City' s experts and vice versa. He said Briggs and Morgan
42 might argue for a different breakdown of those charges because the
43 defendants would probably have a lot more people than the City to be
44 interviewed. The problem is that if the defendants depose some of the
45 City' s experts, the City would probably be forced to depose some of the
•46 defendant' s key people as well. The costs would be based on the hourly
47 charges and Mr. Van DeNorth estimated the City would probably be looking
48
• 9
1 at between $1 ,000 and $1, 500 per deposition for two or three of the
2 defendants' experts.
3 Mr. McDonald indicated they might argue that there is a general
4 litigation rule that the court could order the experts' depositions but
5 whether a class action hearing or motion is enough like a trial that the
6 court could order the deposition is a question the attorneys couldn' t
7 answer at this time. Mr. McDonald said their initial argument would be
8 that the City would rather not get pulled into these massive depositions
9 because of the cost and that the battle should instead be on the
10 affidavits both sides submit. There is no guarantee that argument would
11 be accepted, he added.
12 Councilmember Marks said he believed that the Army, "deep down in their
13 hearts , believed they were responsible for St. Anthony' s problems, " and
14 he asked the attorneys why, if that was true, the Army didn' t just
15 proceed with all due haste to solve the problem instead of fooling
16 around with this suite. He said "the more they delay the more it' s
17 going to cost them because the plume is continuing to flow and sooner or
18 later someone like the court or Congressman Sabo is going to force them
19 to shut it off and clean up the damage they've already caused as soon as
20 they can. "
'1 Mr. Van DeNorth pointed out one of the reasons for the delay has been
22 that up to now, the MPCA has been reluctant to come out strongly related
23 to the plume connection between New Brighton and St. Anthony, but lately
24 have stated publicly that they believe the plume has reached to St.
25 Anthony and, in all probability, beyond the City. And, even though they
26 make that statement when the question is put to some of their experts
27 like Paul Goudreault, etc. they waffle by saying they "think that' s the
28 case, but we 'd like to see a little more evidence on it. " so the MPCA
29 is not applying the same pressure they did to make the Army sit down
30 with New Brighton to solve the problem. He also said he agreed with
31 Councilmember Ranallo' s point that the MPCA' s attention has been focused
32 on New Brighton' s much bigger problem for which he has heard New
33 Brighton is demanding between $13 ,000 ,000 and $14,000,000 where St.
34 Anthony is asking for only between three and four million dollars.
35 Councilmember Ranallo said the MPCA has been told not to get too rough
36 with the Army because the Army brings lots of money into Minnesota. He
37 also said he perceived this would have to follow the usual negotiation
38 process because if the Army conceded at this point, New Brighton would
39 probably demand $40,000,000. He said he has found the longer it takes,
40 the less the settlement is.
41 Councilmember Marks responded by saying it might cost the Army more to
42 wait when it came to St. Anthony because he had just learned from the
43 Finance Director of St. Louis Park that they had just had to shut down
w44 their filtration system. This indicated to him that the City' s costs of
5
10
1 running a reliable water system would be higher than anticipated if that
2 happened periodically. He said the more data the City can get from St.
3 Louis Park' s experience, the better handle the City would have on the
4 system' s operational costs over a long period of time. The
5 Councilmember said St. Louis Park had originally thought they would only
6 have to replace the carbon every two years, but they were now finding it
7 might need replacement every year, which represents a substantial
8 increase in cost of operating the system. He had concluded from this
9 that, by dragging the matter out, the City would have a better chance of
10 identifying more costs "the Army can be nailed for. " The Councilmember
11 agreed the City wanted to get its system up and running as soon as
12 possible but might not necessarily want to settle with the Army right
13 away.
14 Mr. Van DeNorth said he and Mr. McDonald had gotten some direction from
15 the Council' s comments that night and he promised to keep the channels
16 of communication open with the Manager and invited the Councilmembers
17 to contact them if they wanted to. Councilmember Ranallo said it would
18 probably be more cost effective to just have Mr. Childs and not five
19 Councilmembers running up the meter asking the same questions. Mr.
20 Childs said he perceived the attorneys were keeping the City pretty well
21 informed through their memorandums.
22 When Councilmember Makowske started to ask specific questions about some
23 of the information the attorneys had provided, she was cautioned that
�4 the press had arrived and it would be better not to disclose litigation
25 strategy in any but closed sessions. It was noted that the notice of
26 the meeting had been identified as a briefing on litigation, which
27 qualified it for a closed meeting.
28 The meeting was closed at 7 : 29 P.M. for the Council meeting which
29 followed at 7: 30 P.M.
30 :cjk
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