Monday, December 3, 2012

EPA, MDEQ Submit Joint Statement to Court following Review of Restructuring Plan

On December 3, 2012, the U.S. Environmental Protection Agency (EPA), along the Michigan Department of Environmental Quality (MDEQ), filed a Joint Statement(*) with U.S. District Judge Sean Cox to report on their review of DWSD's restructuring plans. This report follows the EPA's October 12th request for time to review the EMA plan.

In their Joint Statement, the EPA and MDEQ explained that while EMA's proposal is outside of their normal jurisdiction and area of expertise, "because EMA's Proposal was raised in DWSD's Motion for an Interim Order, EPA and MDEQ reviewed [it] to assess whether an aspects of it appear likely to affect DWSD's compliance with its NPDES permit and the Clean Water Act ("CWA), 33 USC 1251, et seq." 

Its not surprising, then, that the one aspect of the EMA plan that attracted negative attention was the planned 75% reduction of staff within the wastewater operations group (WWOG) headed by Assistant Director Sam Smalley:   
At this time, EPA and MDEQ take no position on the appropriateness of EMA’s Proposal. However, EPA and MDEQ have identified one aspect of the Proposal that, if implemented as written, could have a negative impact on CWA compliance: the significant projected reductions in staffing levels within DWSD’s wastewater operations group (“WWOG”). DWSD informs EPA and MDEQ that the WWOG currently has over 600 employees. By contrast, after implementation of all recommended actions, EMA’s Proposal projects fewer than 150 WWOG employees.   In discussions with EPA and MDEQ, DWSD managers indicated that EMA’s projected staffing levels have not been adopted by DWSD and are only projections, not a plan. DWSD represented that it intends to move forward with EMA’s proposed staffing actions (i.e., job classification redesign, team training, etc.) in a step-by-step, piloted manner, with time to evaluate and adjust as necessary. DWSD further represented that no recommended actions would be implemented that threatened safety or compliance. 
Safeguards already in place should help to minimize the risk that reductions in WWOG staffing levels might undermine DWSD’s ability to comply with its NPDES permit and the CW A: [4 bullet points omitted]
At this time, EPA and MDEQ have not identified a basis for seeking relief concerning DWSD's consideration of EMA's Proposal. EPA and MDEQ will continue to monitor WWOC staffing levels through the ACO already in place. [FN4 - Below] 
Because the extent to which specific elements of the Proposal will be implemented remains to be determined and because EMA’s recommendations and DWSD’s actions in the future may change, EPA and MDEQ reserve their right to review future developments to ensure continuing CWA compliance.

By conducting this review and continuing to monitor the situation, EPA and MDEQ do not intend to impair DWSD’s efforts to undertake appropriate reorganization, automation, and/or technology and control systems upgrades that DWSD may deem necessary to improve  efficiency, control costs, and address DWSD’s need for long-term strategic and financial planning. 
The EPA and MDEQ also acknowledged the firestorm controversy surrounding the EMA Proposal, but report that they are not inclined to interfere with DWSD's plans, for now, so long as there is compliance with the Clean Water Act.  
FN4 -- The United States and Michigan are aware that, on November 20, 2012, the Detroit CityCouncil rejected a part of the EMA Proposal that called for a $48 million contract between EMA and DWSD. We also are aware that DWSD recently proceeded with a smaller EMA contract involving job classification redesign, training, and implementation. There have been suggestions that EPA and/or MDEQ should take a position on the $48 million EMA contract (for example, by approving or disapproving it). While the United States and Michigan reserve the right to take all actions necessary to ensure compliance with the Clean Water Act and any other applicable federal or state laws, we are not aware, at this time, of any reason why the United States and Michigan would assert authority to approve or disapprove any contract between DWSD and EMA.  
(*) For readers with a PACER Account, the EPA and MDEQ's Joint Statement was filed 12/3/12 in Case No. 2:77-cv-71100-SFC at Dkt #2509. If you're interested in a copy, I'd be glad to e-mail it to you. Just write me and put "Joint Statement" in the reference field. While the statement itself is only 5 pages, there's an additional 85 pages of exhibits, including the Administrative Consent Order [7/8/2011] and First Amended Administrative Consent Order [5/18/2012]. The entire document is about 7MB. It should be available through Scribd within a few days. 

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