BOARD MEETING DATE: October 3, 2003
AGENDA NO. 11

Amend Contract with O'Donnell and Shaeffer and Appropriate Funds from General Fund, Designation for Litigation/Enforcement, to District Prosecutor's FY 2003-04 Budget

SYNOPSIS:

The prosecution of the District's enforcement case against BP West Coast Products, et al. ("BP ARCO") has reached a point where it is necessary to procure the additional assistance of a trial specialist. Pierce O'Donnell, of O'Donnell and Shaeffer has been selected to head up the District's litigation team, which also includes the assistance of Woodruff, Spradlin and Smart. This action is to appropriate an additional $200,000 from the General Fund, Designation for Litigation/Enforcement, and authorize the Executive Officer to amend the contract with O'Donnell and Shaeffer in an amount not to exceed a total contract price of $250,000.

COMMITTEE:

Not Applicable

RECOMMENDED ACTION:

1. Appropriate $200,000 from the General Fund, Designation for Litigation/Enforcement, to the District Prosecutor's FY 2003-04 Budget, Professional and Special Services Account.
    
2. Authorize the Executive Officer to amend the contract with the law firm of O’Donnell and Shaeffer to increase funding by $200,000, bringing the total contract to an amount not to exceed $250,000.

Barry R. Wallerstein, D.Env.
Executive Officer

Background

On March 11, 2003, staff filed a complaint for civil penalties in the amount of $319 Million against BP West Coast Products, the successor in interest to Atlantic Richfield Company, for tank self-inspection, public nuisance, permit condition, and flare monitoring violations at its Carson refinery. The complaint was later amended to include additional public nuisance violations, raising the civil penalty demand to $413 million.

Despite the efforts of the parties, the matter has not settled and a trial date is expected to be set by the court at a case management conference calendared for October 3, 2003. The case is presently in the discovery and law and motion phase. Discovery will entail the review of thousands of documents, responses to written discovery questions, and the deposition of a large number of witnesses. In addition, critical motions are pending and more are anticipated. The trial of this matter will potentially be lengthy and complex.

In order to effectively present the District’s enforcement action, staff needs the additional assistance of a trial specialist experienced in highly complex litigation. Pierce O’Donnell, of O’Donnell and Shaeffer, holds a national reputation for successful outcomes in numerous precedent-setting cases. Mr. O’Donnell was recently named one of the "100 Most Influential Lawyers in America" by the National Law Journal. The selection of Mr. O'Donnell's firm is acceptable to Board Chairman Burke and Board Member Carney who were designated by the Chairman to assist staff in the selection of outside counsel in this matter. The Executive Officer authorized $50,000 to the firm of O’Donnell and Shaeffer so that assistance could be provided on some time sensitive matters currently underway. Consequently, staff is requesting approval to appropriate $200,000 from the General Fund, Designation for Litigation/Enforcement to the District Prosecutor’s FY 2003-04 Budget, Professional and Special Services account for further work in this litigation.

Proposal

Staff recommends that the Board: (1) appropriate $200,000 from the General Fund, Designation for Litigation/Enforcement to the District Prosecutor’s FY 2003-04 Budget, Professional and Special Services Account; and (2) authorize the Executive Officer to amend the contract with the law firm of O’Donnell and Shaeffer to increase funding by $200,000, bringing the total contract to an amount not to exceed $250,000.

Sole Source Justification

O'Donnell and Shaeffer qualify as a sole source for this project under Section VIII(B)(2)(C)(1) of the SCAQMD Procurement Policy and Procedures. Part (2)(C)(1) reads as follows: The desired services are available from only the sole-source based upon one or more of the following reasons:

(1)	The unique experience and capabilities of the proposed contractor or contractor team.

O'Donnell and Shaeffer are unique among environmental litigation firms. Their firm has extensive experience not only in air quality legal matters, including emissions fate and transport, dose-response, industrial practices, risk assessment, and regulatory compliance, but they combine this environmental experience with unparallel trial experience, particularly that of Pierce O'Donnell. Mr. O'Donnell was recently named one of the "100 Most Influential Lawyers in America" by the National Law Journal. An elected Fellow of the International Academy of Trial Lawyers and American Board of Trial Advocates, he has handled numerous trials and appeals in various courts throughout the country. He was lead counsel for Firestone in the landmark "fear of cancer" case in Potter v. Firestone Tire & Rubber Co., 6 Cal. 4^th 965 (1993). He also served as lead trial counsel for Pfizer Inc., successfully defending 375 anxiety/emotional distress cases involving allegedly defective Shiley heart valves. Most recently, he successfully defended Lockheed Martin Corporation against over 3,000 toxic tort claims relating to water contamination. In addition, the firm of O'Donnell and Shaeffer has extensive experience pursuing recovery for companies and clients in numerous actions premised upon alleged toxic exposures, including airborne toxins. They also have extensive experience in complex litigation, including matters with the potential for very large damages or civil penalties.

Resource Impacts

The sum of $200,000 will be appropriated from the General Fund, Designation for Litigation/Enforcement, to the District Prosecutor’s FY 2003-04 Budget, Professional and Special Services account.

/ / /