Judge Cox Orders End to EPA Lawsuit, 35 Year Federal Court Oversight

Earlier this morning, Judge Sean Cox entered an order concluding the EPA lawsuit and federal oversight of DWSD which began in 1977.

"The Court concludes that, after more than thirty-five years of federal oversight, the DWSD has achieved substantial compliance with its NPDES permit and the Clean Water Act. This Court shall therefore terminate the Second Amended Consent Judgment and close this case because the existing Administrative Consent Order is a sufficient mechanism to address any future issues regarding compliance with the DWSD's NPDES permit and the Clean Water Act."    

With regard to the request made in the Director's March 15, 2013 Final Compliance Report, that the Court sanction the conversion of DWSD into an independent public authority, Judge Cox declined such a request, which his opinion indicates was unsolicited:

"This Court has no intention of ordering the creation of a regional authority and has no intention of ordering or approving the transfer of DWSD's assets to a regional authority. This Court lacks the authority to do so.  Moreover, even if this Court had the authority to order what is not being proposed, the Court would not do so for multiple reasons."

Comment: I suspect that Judge Cox's ruling this morning caught many by surprise. If DWSD still plans to become an independent authority, it either needs to convince the new EM, Kevyn Orr, that this is a good idea or throw its support behind Kurt Heise's legislative approach.  

(Note: If you write me (here), I would be glad to e-mail you a full copy of Judge Cox's Opinion and Order. I'll try to get it posted later in the day, but no time now.)

Related press coverage: 

• Crain's Detroit Business   
• Detroit News
• Detroit Free Press  

For more about DWSD Update, click here.  

City of Detroit Wastewater, CSO Discharge Permit Considered for Renewal

On January 18, 2013, the Michigan Department of Environmental Quality (MDEQ) published DWSD’s request to renew and reissue its wastewater and CSO discharge permit, NPDES Permit No. MI0022802. Comments or objections are due by February 19, 2013.

In accordance with Rule 323.1103 of the Michigan Water Quality Standards, the MDEQ proposes to grant a variance from the water quality standard that is the basis for the water quality-based effluent limit for Mercury in the draft permit.

The Discharge-Specific Level Currently Achievable for Total Mercury was developed in accordance with the Department's approved Multiple Discharger Variance (MDV). A copy of the MDV may be obtained via the Internet at (http://www.michigan.gov/deqnpdes - click on ‘Applicable Rules and Regulations’) or at the District Office.

Copies of the permit application, Public Notice, Fact Sheet, and draft permit may be obtained via the Internet (http://www.deq.state.mi.us/owis - click on ‘Permits on Public Notice’) or at the Water Resources Division Southeast Michigan District Office located at 27700 Donald Court, Warren, Michigan 48092-2793, telephone: 586-753-3750. 

(Note: If you write me (here), I would be glad to e-mail you a copy of DWSD's permit application and all related documents in a single zip file.  Even compressed, its almost 11MB. Just put “NPDES Permit” in the subject line when you write.)
 
Comments or objections to the draft permit received by February 19, 2013, will be considered in the final decision to issue the permit. Persons desiring information regarding the draft permit, procedures for commenting, or requesting a hearing should contact Matthew Staron, Permits Section, Water Resources Division, Department of Environmental Quality, P.O. Box 30458, Lansing, Michigan 48909, telephone: 517-335-4491, e-mail: staronm@michigan.gov.

A Public Meeting on the draft Permit has been scheduled on Wednesday, February 13, 2013, from 7:00 to 9:00 p.m. at the Western High School located at 1500 Scotten Street, Detroit, Michigan. Persons needing assistance with hearing, mobility, or visual accommodations should contact Susan Ashcraft at 517-241-1346 or e-mail at ashcrafts@michigan.gov to request these accommodations.


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EPA Notifies Court, Seeks Time to Evaluate DWSD Plans to Cut its Workforce

On October 12, 2012, the U. S. Environmental Protection Agency (EPA) asked Judge Sean Cox for 45 days to evaluate DWSD's recently-announced plan to dramatically cut its workforce and  to take no further actions toward implementing the plan during this evaluation period. 

In a two page document(*) filed with the U. S. District Court captioned "Notice of the United States Regarding the DWSD's Motion for Interim Order," EPA Attorney Annette M. Lang, and Assistant U. S. Attorney Peter A. Caplan request that the Court give the EPA time to evaluate DWSD's proposal and whether it would affect compliance with the Clean Water Act:

"The Michigan Department of Environmental Quality ("MDEQ") recently informed EPA about a proposal that the Detroit Water and Sewerage Department ("DWSD") was considering that recommended, inter alia, a dramatic reduction in staffing level within DWSD's wastewater treatment plan and combined sewer overflow operations. EPA has not had the opportunity to review and evaluate the potential impact and implications of the proposal on DWSD's compliance with the Clean Water Act, 33 U.S.C. 1251, et seq, and its NPDES permit, including the operation and maintenance requirements contained therein. To the extent that actions by this Court on DWSD's Motion for Interim Order may open the way for DWSD's initiation of the implementation of that proposal, EPA seeks to notify this Court and the parties of its interest in having the opportunity to meaningfully undertake an evaluation of the proposal prior to any such action. 

"During the period of its evaluation of the proposal, EPA plans to work with both MDEQ and DWSD. To that end, managers and staff from EPA are already planning to meet with managers and staff from MDEQ on Tuesday, October 16, 2012, to discuss and evaluate the current situation. The meeting is intended to provide further clarification on a path forward. 

"With this notice, EPA is not taking any position on any aspect of the proposal before DWSD.  

"Accordingly, EPA seeks a period of forth-five (45) days to evaluate the potential impacts of the proposal on CWA compliance and asks this Court not to take any actions that would open the way for DWSD to initiate the implementation of the proposal prior to that time. DWSD has not reported any violations of its NPDES numeric limitations on solids since November 2011 and has not reported any other NPDES numeric limitations since March of this year [2012]. Therefore, nothing in the record would indicate that immediate commencement of the implementation of the proposal is required." (emphasis added)

Note: The case that Judge Cox currently presides over was originally filed in 1977 by the U. S. Environmental Protection Agency to enforce compliance with the Clean Water Act. The EPA has not played an active role in the case, however, for a number of years. The EPA's request that Judge Cox 'take no action' for 45 days is an interesting development. Judge Cox is not bound to comply with the EPA's request, but it is unlikely that he would simply ignore it. Stay tuned for how the Court and DWSD responds to the EPA's request.

(*) For readers with a PACER Account, the EPA's Notice was filed 10/12/12 in Case No. 2:77-cv-71100-SFC at Dkt #2492. If you're interested in a copy, I'd be glad to e-mail it to you. Just write me and put "EPA Notice" in the reference field.   

For more about DWSD Update, click here. 

Judge Cox Denies Request to End Federal Oversight of DWSD, Orders Plan for Fundamental Changes within 60 Days

Earlier today, U. S. District Judge Sean Cox  denied without prejudice a motion filed by the City of Detroit in late July to dismiss the 34 year old federal lawsuit by the U.S. EPA.  

Instead, Judge Cox has ordered that within 60 days, Mayor Bing, City Council President and President Pro Tem, and a current member of the Board of Water Commissioners meet and devise a plan to address the root causes of DWSD's chronic non-compliance with the Clean Water Act. 

The parties are to submit their plan to Judge Cox at a Status Conference on November 4, 2011 at 8:30 a.m.

As we reported here, the City of Detroit petitioned Judge Sean Cox in July to dismiss the 1977 federal lawsuit citing the Administrative Consent Order (ACO) it entered into with the Michigan Department of Environmental Quality (DEQ) on July 21, 2011.

In Denying the City of Detroit's request to dismiss the federal lawsuit, Judge Cox noted that even after executing the ACO, "the DWSD self-reported serious violations of its NPDES permit to the DEQ." 

Thus, the City has not established that the DWSD has achieved even short-term compliance with the ACO and the Clean Water Act. Moreover, this Court concludes that the record in this case establishes that, unless more fundamental corrective measures are taken to address the institutional and bureaucratic barriers to compliance, sustained compliance with the Clean Water Act and the ACO will simply not occur.

In ordering that the City, City Council and Water Board devise a plan within 60 days, Judge Cox noted:

In doing so, they shall not be constrained by any local Charter or ordinance provisions, or by the provisions of union or other contracts. If these local officials fail to devise and propose a workable solution to remedy the underlying causes of the serious and recurrent violations of the Clean Water Act in this case, the Court will directly order a more intrusive remedy.

To read the entire text of Judge Cox's Opinion and Order, click here.

Additional resources:

•  Judge issues dire warning to Detroit over Water Department violations (Detroit News, September 9, 2011) 
• Union criticizes judge's direction to ignore contracts, clean up Detroit sewage plant (Detroit Free Press, September 9, 2011)
• Engineering Society of Detroit (ESD) Consensus Action Report, DWSD: The Road to Compliance and Beyond (July, 2010) 

For more about DWSD Update, click here.

Oakland County Opposes Dismissal of Federal Case, Seeks Greater Authority for Detroit Water Board

Oakland County opposes dismissal of the 34 year old federal lawsuit involving the Detroit Water and Sewerage Department, and seeks changes to the Water Board's by-laws, which would give the Board greater authority over the affairs of DWSD.

Earlier this week, in response to the City of Detroit's July 25, 2011 Motion to Dismiss, Oakland County filed a Response, which challenges the assumption that transferring oversight of DWSD to the Michigan DEQ, through the Administrative Consent Order (ACO), will solve DWSD's compliance problems.

Citing over 30 years of efforts to bring the Detroit Wastewater Treatment Plant (WWTP) into long-term compliance with the Clean Water Act, Oakland County has "grave concerns" with DWSD's ability to achieve the milestones set forth in the ACO.  

Among the chronic problems cited by Oakland County, which are the same problems identified in more than half a dozen reports and findings by the late Judge John Feikens, are the following: 

• insufficient number of adequately trained personnel
• inadequate repair and maintenance of dewatering equipment
• cumbersome bidding and arcane purchasing policies 

To address these long-standing problems, Oakland County contends, requires more than another recovery plan or another set of milestone dates.  Citing a 2010 report by one of Judge Feikens' technical experts (Prof. Jonathan Bulkley), Oakland County argues that now is the time for fundamental change: 

"It may be appropriate to consider more fundamental corrective measures to address the institutional problems which are adversely impacting the performance of DWSD's wastewater treatment plant." 

Oakland County requests that Judge Cox order amendments to the Water Board's by-laws that would provide for the following: 

• allow the Water Board to adopt its own procurement policy and allow DWSD to contract in its own name for construction and professional services
• allow the Water Board to control the expenditure of funds from the DWSD enterprise fund and limit transfers to the City of Detroit's general fund
• allow the Water Board to develop a policy for ensuring and maintaining the financial health of DWSD
• give DWSD exclusive authority to handle all human resources and employee matters, including hiring and firing, notwithstanding any contrary provisions or prohibitions of any collective bargaining agreements, civil service rules or past practices
• allow DWSD to hire its own legal counsel, both general and special counsel, as needed

Oakland County also requests an order "enjoining the City of Detroit and each of its executives, officers, managers, departments, boards, contractors, employees . . . from attempting to interfere with or exercise authority over any of the matters vested in the Board [of Water Commissioners] by the Amended By-Laws." 

Click here to read Oakland County's Response in its entirety. 

Comment: Without using the word, Oakland County is really seeking autonomy for DWSD and the Water Board.  Autonomy from the City of Detroit's arcane purchasing and hiring practices. Autonomy from outside interference.  With all signs pointing toward an end to the 1977 federal lawsuit, Oakland County's request, if granted, would require that Judge Cox keep the case open to enforce a new order.  There will probably be changes to the Water Board's by-laws, but I don't think it will come by court order.  Much like the changes to the Water Board in February, Oakland County's request will likely precipitate negotiations with Mayor Bing that will lead to changes. 

For more about DWSD Update, click here.