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Minutes - Board - 2019-09-23COSTA MESA SANITARY DISTRICT MINUTES OF BOARD OF DIRECTORS SPECIAL MEETING SEPTEMBER 23, 2019 Members present Arlene Schafer, Art Perry, Bob Ooten, Jim Ferryman, Mike Scheafer Members absent None Staff present Scott Carroll (General Manager), Alan Burns (District Counsel), Robin Hamers (District Engineer), Noelani Middenway (District Clerk & Public Information Officer), Steve Cano (Wastewater Maintenance Superintendent), Gina Terraneo (Management Analyst II), Bao Vong (Engineering Technician) Others present Joseph Jenkins (EEC Environmental), Dennis Ruiz (Mike Kilbride, Ltd.), Medhat Bechay (Denny's Owner), Faith Pinho (Daily Pilot) Meeting called to order at 9:06 A.M. A. Opening Items 1. Call Meeting to Order President Ferryman called the meeting to order at 9:06 A.M. 2. Roll Call District Clerk and Public Information Officer, Noelani Middenway, conducted roll call and noted that all Board Members were present. 3. Announcement of Late Communications General Manager, Scott Carroll, shared that late communications (in email form) were submitted to District staff from Medhat Bechay, owner of Denny's. He noted that the email will be discussed during his presentation, and he noted that he provided copies of the email to the Board of Directors and made copies available to the public. COSTA MESA SANITARY DISTRICT PAGE 2 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23, 2019 B. Public Comments President Ferryman opened public comments. Seeing no members of the public wishing to speak, President Ferryman closed public comments. C. Public Hearing 1. Consider Terminating Variance and Ordering Food Service Establishment, Denny's, located at 3170 Harbor Boulevard, Install and Maintain a Grease Interceptor President Ferryman identified parties involved in the hearing, including Alan Burns (District Counsel), Scott Carroll (General Manager), and Medhat Bechay (Denny's owner). 2. Opening Comments by President and District Counsel Mr. Burns explained that the issue of the hearing is to determine whether Denny's has contributed to a sewer blockage, sewer system overflow, or any system interference resulting from the discharge of wastewater or waste containing fats, oils, and grease (FOG), and whether Denny's should be ordered to install and maintain a grease interceptor to prevent future health hazards created by sewer line failures and blockages, sewer system overflows, or other sewer system interferences. He noted that an order to retrofit shall not be made unless the property owner has been given due process and an opportunity to address the Board regarding the proposed action. Mr. Burns confirmed that the Denny's establishment's owner was notified of the hearing, and that he is present. He explained that the Board cannot make an order to retrofit unless they make a finding that the action is necessary to protect the public health, safety, and welfare, which are threatened by future sewer spills that are otherwise likely. He noted that the hearing will be informal, and the rules of evidence will not be strictly followed, although certain evidence will be given greater weight than others. Mr. Burns explained that although hearsay will be allowed, it will not alone support an order to retrofit. He noted that District staff will have the opportunity to present its case for retrofitting first (since the District has the burden of proof), which has been previously shared with Denny's weeks prior to this hearing in the form of a packet that has been made part of the administrative record. He also noted that the administrative record includes Chapter 6.07 of the District's Operations Code, relevant provisions of the Health and Safety Code, and Exhibits (attachments) 1 through 10. Mr. Burns explained that District staff may present live witnesses who support its case, and that Denny's will then have the opportunity to present documentary evidence and testimony to support its case. He noted that each side will be granted a limited right to cross-examine witnesses, if necessary, to provide a fair hearing. Mr. COSTA MESA SANITARY DISTRICT PAGE 3 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23,2019 Burns confirmed that the District and Denny's both anticipate their presentations to take approximately 15 minutes each. He also verified that Medhat Bechay is one of the owners of Denny's, and that Dennis Ruiz of Mike Kilbride, Ltd. is Mr. Bechay's plumbing contractor. 3. Call the Matter for Hearing President Ferryman called the matter for hearing. 4. Staff Presentation Mr. Carroll provided evidence of the history of sanitary sewer overflow (SSO) incidents at the Denny's establishment, dating back to 1997. He noted that most of the past SSOs were not caused by grease, but rather they were caused by infrastructure failures that the owners have since repaired. However, Mr. Carroll shared that the establishment has been experiencing continued SSOs that the District believes to be caused by grease. He noted that SSOs threaten public health and welfare, and he noted that District staff believes that future SSOs will occur at this establishment. Mr. Carroll presented the recommendation for the Board to terminate the variance and order Denny's to install a grease interceptor. He presented details regarding correspondence and enforcement letters that were sent to the various property owners between 1997 and 2019, the requirements that were imposed on the establishment, and the action that was taken to address the SSOs. Mr. Carroll noted that Denny's was grandfathered into the District's FOG Control Program, and therefore it was not required to install a grease interceptor, but it was required to comply with the District's Operations Code and its FOG discharge permit (which expires in 2021). He noted that the District has the authority to revoke the establishment's FOG discharge permit if it can prove that grease is a major contributor to the SSOs. Mr. Carroll explained that the District also sent Denny's a series of invoices since October 2015 to recoup costs associated with responding to 3 SSOs, and Denny's still owes the District $195.88 due to interest and late penalty fees. He noted that Denny's submitted an email (Exhibit 6), which states that they do not believe grease has contributed to the SSOs. He explained that Denny's believes the SSOs are occurring due to homeless activity, such as individuals disposing of items in their restrooms. Mr. Carroll shared that he responded to this email by noting that the District's May 27, 2019 closed circuit television (CCTV) shows that there is FOG in the establishment's lateral sewer line. He displayed the CCTV video. Mr. Burns asked Mr. Carroll to confirm that the video was taken on May 27, 2019 by Pro -Pipe, a plumbing contractor. Joseph Jenkins of EEC Environmental commented that the video was taken shortly after a hydrojetting cleaning was done. COSTA MESA SANITARY DISTRICT PAGE 4 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23, 2019 Mr. Carroll discussed additional correspondence between Denny's and the District, including late communications that were submitted on September 20th. He noted that the District has required Denny's to conduct hydrojetting every 3 months since 2015, and they submitted documentation stating that they have been adhering to this requirement since 2017. He added that in January of this year, the District increased the frequency of required hydrojetting to every 2 months, and the District has no evidence that this requirement is currently being met. Mr. Carroll reiterated the requirements set out in the District's Operations Code Section 6.07.170 and recommended the following options: for the District to require Denny's to install a 750 lb. gravity grease interceptor or a large Hydromechanical Grease Interceptor (HGI). Mr. Carroll provided a concluding statement that Denny's is a significant contributor of FOG into the wastewater system, and therefore District staff recommends terminating the establishment's variance and ordering the installation and maintenance of a grease interceptor. He noted that District staff and contractors are available for questions. Director Perry verified that the CCTV video depicts the establishment's lateral after repairs were made to address infrastructure failures. He also verified that the establishment's SSOs reached the storm drains, but that the District was not fined by the State Water Resources Control Board for these SSOs. Vice President Ooten asked why hydrojetting has not been a successful method of cleaning the lateral. He commented that there seems to be a section of the lateral where the grease was not successfully removed. Wastewater Maintenance Superintendent, Steve Cano, commented that the grease seems to have collected in the flattest section of the lateral. He explained that contractors are unable to see whether hydrojefting is successful until after the cleaning is complete. District Engineer, Robin Hamers, asked Mr. Ruiz what repairs were made to the lateral. Mr. Ruiz noted that he repaired a section of pipe (where the cleanout was located) that had collapsed in 2017. Mr. Hamers commented that the lateral is long and flat, which can cause the grease to settle in the line when wastewater flow is low. He noted that grease is deposited into the line on a daily basis, because Denny's does not have a grease interceptor. Mr. Hamers concluded by saying that to address the issue, a grease interceptor needs to be installed or the lateral must be hydrojetted very frequently. COSTA MESA SANITARY DISTRICT PAGE 5 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23, 2019 Director Scheafer indicated concern about the potential for SSOs to reach storm drains (and waterways leading to the Pacific Ocean) located near Denny's. He confirmed that Denny's has expressed in past correspondence that they believe homeless individuals are flushing obstructive materials and objects down the establishment's toilets, which are causing blockages in their lateral. He confirmed that Mr. Cano's assessment of the CCTV video is that the lateral is obstructed by grease rather than an accumulation of non -grease materials and objects. Mr. Jenkins commented that it is common for grease to line the surface of a lateral and cause other items to accumulate further within the pipe to create a blockage. He added that if there is no grease build-up, debris can usually flow through a pipe. President Ferryman asked if District staff has any other recommendations that are less costly, but equally effective at preventing SSOs. Mr. Burns noted that Mr. Bechay will have an opportunity to present his case and his recommended action. Vice President Ooten inquired about the water level in the lateral, as shown in the CCTV video. Mr. Hamers commented that the higher water level shown toward the end of the video may have been caused by a sag in the lateral. For clarification, he explained that only kitchen plumbing fixtures would be connected to a grease interceptor (bathroom plumbing fixtures are not). Vice President Ooten commented that if there is a sag in the lateral, this could also cause grease to accumulate. Director Scheafer verified that a variance was granted to Denny's, along with several other restaurants, when the FOG Control Program was implemented. For clarification, Mr. Burns confirmed that Mr. Hamers stated that the installation of a grease interceptor will not address instances of objects being flushed down the establishment's toilets. He noted that a grease interceptor does not allow grease to enter the lateral, but he also noted that blockages can be caused by a combination of grease and objects that are flushed down the toilets. Mr. Hamers commented that grease can be likened to glue, and can create a dam in the lateral that causes other objects to accumulate. Director Scheafer reiterated Mr. Jenkins' comment that objects would otherwise be able to flow through the lateral if not for the grease. COSTA MESA SANITARY DISTRICT PAGE C MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23, 2019 5. Denny's Presentation Mr. Burns stated that Mr. Bechay can proceed with asking any questions he may have of District staff or others present at the hearing prior to presenting his case. Mr. Bechay commented that Denny's has been working with the District to address the issue at hand. He commented that Denny's serves the community. Mr. Burns asked if Mr. Bechay had any questions for District staff prior to presenting his case. Mr. Bechay commented that District staff did not contact him right away after the SSOs occurred, but rather they contacted C&R Drains to respond to the SSOs immediately. He added that he has directed his contractor to conduct frequent hydrojetting, and his staff takes photos daily to monitor the establishment's plumbing in an effort to address the issue. Mr. Bechay commented that the District contacted the health department, and he explained that he believes that the CCTV video shows that there are objects (such as hand towels and paper towels) accumulated in the lateral that are flushed down the establishment's toilets. He noted that other Denny's locations face similar plumbing issues. Lastly, he asked that District staff contact him directly if any issues are discovered in the future. Mr. Burns asked if Mr. Bechay statements were part of his case, or if he had any questions for District staff. Mr. Bechay noted that he did not bring his attorney to today's hearing. He confirmed that Mr. Burns is an attorney, but that he is acting as the District Counsel and advising the Board of Directors in this hearing. Mr. Bechay explained that the District previously recommended hydrojetting every 3 months, which he has done (and kept documentation of) since 2000. He reported that there were 4 "major incidents" in the past 19 years, indicating that an SSO is occurring approximately once every 4 years. Mr. Bechay noted that the installation of a grease interceptor is costly and it would interrupt business hours. He commented that this does not make sense to him, in terms of business. Mr. Bechay commented that Denny's is doing everything it can to keep sewer overflows from entering the storm drains. He noted that he is unsure of whether the Denny's lateral is connected to that of the gas station next door. He explained that the grease in the lateral comes from the fryer oil that is washed off of the kitchen floor (not from grease being poured down the drain). Mr. Bechay noted that the CCTV video shows that water is flowing in the lateral, and he added that he submitted another CCTV video to the District (taken during the same time period) that shows water flowing. He commented that he is unsure of whether the substance that District staff referred to as grease in the CCTV video is actually grease, or if it is paper towels. He noted that he is not an expert. COSTA MESA SANITARY DISTRICT PAGE 7 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23, 2019 In response to Mr. Bechay's presentation, Mr. Carroll noted that the District has not seen as many private SSOs from any other food service establishment as they have seen from this Denny's. He noted that Mr. Bechay has been very cooperative and that the District seeks to be business -friendly; however, he commented that at some point the District has to say "enough is enough" because sewer spills are a threat to the public's health and safety. Mr. Carroll explained that the District contacts its contractor, C&R Drains, immediately to respond to SSOs (rather than contacting Mr. Bechay first), because SSOs require immediate attention. Vice President Ooten commented that the SSOs must be stopped. He added that they were initially caused by infrastructure failures, but they are more recently caused by grease. He commented that the sag presents another structural problem, and he noted that hydrojetting may be more effective if it were not for the sag in the lateral. Vice President Ooten stated that the sag must be eliminated, and if it cannot be eliminated, then the grease must be eliminated. He proposed that the owner must figure out a way to stop grease from accumulating in the lateral by either installing a grease interceptor or eliminating the sag in the lateral. Mr. Burns reminded the Board of Directors that this is a time for asking questions, and they can deliberate and conduct analysis under Item C8. Director Scheafer verified that District Denny's lateral has any interaction with Motel 6, or Raising Cane's. staff has no reason to believe that the the laterals of the Chevron gas station, In response to Vice President Ooten's comments, Mr. Harriers noted that he does not know whether it is possible to remove the sag from the lateral. He noted that survey work would need to be done to determine whether the lateral could be reconstructed with a positive grade. Director Scheafer inquired about the source of the grease. Mr. Jenkins explained that the largest source of grease for full service restaurants like Denny's is from washing dishes, silverware, and cookware. He commented that any brand new Denny's establishment would likely have a full service grease interceptor, since it is considered a high producing facility. Director Scheafer verified that Raising Cane's has a grease interceptor. Director Perry asked how much it costs Denny's to hydrojet its lateral. Mr. Bechay responded that hydrojetting costs about $475 per service. COSTA MESA SANITARY DISTRICT PAGE 8 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23, 2019 Mr. Hamers commented that this is a reasonable cost, given the length of the lateral. Secretary Schafer confirmed that Denny's has a sign indicating that restrooms are for customers only. She suggested that Denny's regulate restroom use if they believe objects are being flushed down their toilets. Mr. Bechay noted that the restrooms are not being watched continuously, and he noted that Denny's does not discriminate against customers. He commented that he does not like the idea of using a coin -operated restroom lock. Vice President Ooten verified that Denny's has 3 clean -outs. Mr. Cano noted that the CCTV video does not indicate which clean -out was used to enter the lateral. He explained that the sewer overflows occurred on Gisler Avenue.- 6. Concluding Comments Mr. Carroll reiterated that District staff believes that the CCTV video demonstrates that FOG is a contributing factor to the SSOs that Denny's has experienced. He also reiterated that District staff reports that the SSOs are not due to FOG alone; however, other objects get flushed into the system and accumulate as they stick to the FOG. He explained that if the FOG were eliminated, then other materials would be able to flow through the lateral. Mr. Carroll noted that the Board can direct Denny's to attempt to fix the sag in the lateral, and if this does not stop SSOs from occurring, then the District can hold another hearing to determine the next course of action. He stressed the importance of stopping future SSOs from occurring, and he requested the Board's direction on the matter. Mr. Bechay noted that the SSOs do not occur weekly or monthly. He commented that if a major problem existed, then SSOs would occur more regularly. He noted that there would be additional costs associated with installing a grease interceptor, including the cost of closing down the restaurant and potential parking lot repairs, causing the total cost to be closer to $100,000. Mr. Bechay indicated a desire to work with the District and to protect the public's health. Mr. Burns noted that the Board will have a chance to deliberate once the public hearing is closed. 7. Public Hearing Closed President Ferryman closed the public hearing. COSTA MESA SANITARY DISTRICT PAGE 9 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23, 2019 8. Board deliberates and renders its decision, directs District Counsel to prepare confirming resolution President Ferryman thanked all in attendance and opened the deliberation. Director Perry proposed that the Board direct Denny's to increase the frequency of hydrojetting from every 2 months to every month. He asked Mr. Bechay if he believes this would help resolve the issue. Mr. Bechay indicated that he will comply with the Board's direction. Director Perry asked if he can ask District staff a question. Mr. Burns noted that the hearing would have to be re -opened in order to introduce new evidence through further questioning. Director Perry refrained from asking further questions and reiterated his proposal. Vice President Ooten suggested finding out if it is possible to use smart cover technology to alert the establishment when the lateral's water level is rising. He commented that if Denny's knew when the water level was rising, their emergency response may be quicker. He noted that he is unsure if this is possible. Vice President Ooten suggested that Denny's employ water conservation practices and either prevent grease from entering the lateral, repair the sag in the lateral, or find a way to determine when the water level is rising in the lateral. Secretary Schafer indicated agreement with Director Perry's proposal, but added that she would like to see a timeline added to the proposal. Director Perry suggested that Denny's conduct hydrojetting monthly for 1 year. He noted that if an SSO occurs within 1 year, the Board can direct Denny's to install a grease interceptor. Secretary Scheafer suggested an alternative timeline of 6 months. Mr. Burns noted that the Board would not need to include a timeline in their decision, but they can do so if they would like. He explained that the Board can make this proposal and monitor progress, and if there are future issues, Mr. Carroll can present another case for alternative action. Director Scheafer commented that Director Perry's proposal would merely prolong the inevitable. He explained that if a restaurant like Denny's were built tomorrow, the District would require it to install a grease interceptor. He COSTA MESA SANITARY DISTRICT PAGE 10 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23, 2019 commented that the Board should require Denny's to install a grease interceptor in order to protect the public's safety. He noted that he believes that best business practices are to ensure that your business is operating in a safe and efficient manner. Director Scheafer commented that he does not believe Denny's has done enough to prevent SSOs. He noted that there are ways to prevent transients from using the establishment's restrooms (such as a coin -operated lock). Mr. Bechay spoke out of turn and Mr. Burns reminded him that the hearing has been closed. Director Scheafer commented that he believes that a grease interceptor will eventually need to be installed at Denny's, and therefore he does not support prolonging the process and waiting for another SSO to occur. President Ferryman indicated agreement with Secretary Schafer's proposal to direct Denny's to conduct monthly hydrojetting for 6 months to determine whether this will prevent future SSOs. Motion: To terminate the variance and order the food service establishment, Denny's (located at 3170 Harbor Boulevard) to conduct monthly hydrojetting of its sewer lateral. If a future sanitary sewer overflow (SSO) occurs, the Board of Directors will consider ordering the food establishment to install and maintain a grease interceptor. Motion by Art Perry. Substitute Motion: To terminate the variance and order the food service establishment, Denny's (located at 3170 Harbor Boulevard) to conduct monthly hydrojetting of its sewer lateral for 6 months. If a sanitary sewer overflow (SSO) occurs within the 6 month timeframe, the Board of Directors will consider ordering the food establishment to install and maintain a grease interceptor. Motion by Arlene Schafer. Motion died due to lack of a second. Original Motion: To terminate the variance and order the food service establishment, Denny's (located at 3170 Harbor Boulevard) to conduct monthly hydrojetting of its sewer lateral. If a future sanitary sewer overflow (SSO) occurs, the Board of Directors will consider ordering the food establishment to install and maintain a grease interceptor. Motion by Art Perry, second by Arlene Schafer. Final Resolution: Motion Carries 3-2 Aye: Arlene Schafer, Art Perry, Jim Ferryman No: Bob Ooten, Mike Scheafer COSTA MESA SANITARY DISTRICT PAGE 11 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD SEPTEMBER 23,2019 Mr. Burns noted that he will create a resolution to memorialize the decision and bring it to the Board for approval at a future meeting. Director Perry requested monthly updates from EEC about the effectiveness of the hydrojetting. There was no further discussion. D. Closing Items 1. Adjournment President Ferryman adjourned the meeting at 10:22 A.M. 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