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."
"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.)
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.
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 improveefficiency, 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.
The Detroit Water and Sewerage Department (DWSD) has released an RFP package for design-build services for the construction of Contract PC-791, “Sewage Sludge Incinerator Air Quality Control Improvements.” Proposals are due August 1, 2012* July 25, 2012 at 12:00 noon.
A pre-proposal conference will be held on Thursday, June 7, 2012 at 9:00 a.m. at the Detroit Wastewater Treatment Plant at 9300 W. Jefferson, Detroit, Michigan. For more information, contact Dan Edwards at (313) 964-9471 or daedwards@dwsd.org.
In the RFP, DWSD is seeking a qualified firm to provide design-build services under a negotiated, fixed-price contract to provide all design, obtain all necessary permits, furnish all materials and equipment, perform any required demolition and removal, temporary or permanent rerouting of existing piping or electrical service, construct, start-up, and test all modifications and improvements necessary to enable the eight multiple hearth incinerators at Incineration Complex II of DWSD’s Wastewater Treatment Plant to continuously comply with new air quality regulations for Sewage Sludge Incineration Units as incorporated into 40 CFR Part 60 by the Final Rule published by U.S. EPA on or about March 21, 2011, as well as providing all other Work and obligations required by the Contract Documents.
Optionally, DWSD may direct the Contractor to also bring two incinerators in Incineration Complex I into compliance with the new regulations.
Click here for a copy of the RFP Advertisement. RFP documents are also available on Dodge Reports (No. 201200531301).
Update (7/20): The due date for proposals was extended to August 1, 2012 per Addendum No. 3. Update (9/26): The Board of Water Commissioners approved today a design-build contract in the amount of $37,989,471 with Walsh Construction Company. The contract duration is 1,676 calendar days.
Less than a week after AFSCME Council 25 filed its Motion to Intervene in the EPA Lawsuit in order to block implementation of the U.S. District Court's November 4, 2011 Order, Judge Sean Cox earlier today issued an Opinion and Order DENYING the motion on grounds that the motion was untimely.
Timeliness of a motion to intervene is a threshold issue for any court to consider. In this case, Judge Cox found that "this Court's analysis begins, and ends, with timeliness."
Judge Cox considered four (4) elements related to timeliness:
1. How long did AFSCME know of their interest in the case?
The first factor, the length of time preceding the application for intervention during which the proposed intervenor knew or reasonably should have known of his interest in the case, is the most significant factor here and weighs heavily against intervention.
The DWSD has been under federal court oversight since 1977. This case has garnered considerable media attention over the past four decades. . . . [T]he risk that orders in this action may affect collective bargaining agreements and union work rules, as they relate to DWSD, has been apparent for decades. [Court then cites reports from 1977-2009] * * * In addition, there is no question that AFSCME had actual knowledge, no later than September 9, 2011 [when the Court issued its Opinion and Order Denying Detroit's Motion to Dismiss the EPA Lawsuit], that its interests would likely be impacted by orders that would be issued in this case on an expedited basis. * * * Nevertheless, neither AFSCME nor any of the other 19 unions that represent employees of the DWSD sought to intervene after this Court issued its September 9, 2011 Opinion & Order. Rather, union representatives met with members of the Root Cause Committee to voice their views and adopted a "wait-and-see" approach . . .
2. What is the purpose for intervening in the lawsuit?
Under Rule 24 of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 24), a motion to intervene must be accompanied by a pleading that sets out the claim or defense for which intervention is requested.
In this case, AFSCME Council 25 did not attach a proposed complaint or other pleading.
3. Will there be prejudice to the original parties to the lawsuit?
Judge Cox concludes in his Opinion and Order that the answer to this question is a resounding -- Yes.
The EPA initiated this action [in 1977] to address violations of the Clean Water Act, the objective of which is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. It is undisputed that, over the course of the past four decades, the DWSD has had serious and recurring NPDES permit violations, which constitute violations of the Clean Water Act.
* * *
This Court has already concluded that certain collective bargaining provisions and work rules are impeding the DWSD from achieving compliance with its NPDES permit and the Clean Water Act and issued an order enjoining those provisions. If the Court's Order is not implemented immediately, the DWSD's ability to function and reach compliance with its NPDES permit, the ACO, and the Clean Water Act will be jeopardized. That would prejudice the City of Detroit, the DWSD and its customers, the general public, and the DEQ -- the entity current charged with enforcing the DWSD's NPDES permit, which has spent considerable resources monitoring DWSD over many years.
4. How far has the case already progressed?
Judge Cox also answers this question in the affirmative citing the long duration of this case and numerous reports citing issues with the collective bargaining agreements, work rules and job descriptions.
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