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.


For more about DWSD Update, click here.  

Former Oakland County WRC Appointed to Lead Huron-Clinton Metroparks

Former Oakland County Water Resources Commissioner, John P. McCulloch has been appointed Director of the Huron-Clinton Metroparks.  McCulloch, who lost his bid for a another term as Oakland County WRC in November to James Nash, was appointed lead the Huron-Clinton Metroparks on December 13, 2012.  Nash took office on January 2, 2013.

In a December 18, 2012 Special Newsletter, Mr. McCulloch, a frequent critic of DWSD, reflected on his tenure as Water Resources Commissioner for Oakland County, including his role in shaping the future direction of the Department: 

During my 12-year tenure, the Oakland County Water Resources Commissioner’s Office has been at the vanguard in reducing costs, placing a premium on customer service and initiating innovative programs that have provided taxpayers with the “most bang for their buck.” Before departing, I’d like to mention a few of the major achievements of which I am most proud. 

The 35-year-old lawsuit filed by my predecessor, George W. Kuhn, to force the Detroit Water and Sewerage Department (DWSD) to comply with the Federal Clean Water Act became my fight. 

I led the effort to revamp the Detroit Water Board and how it operates by insisting on a greater voice at the table for Oakland, Wayne and Macomb Counties in the decision-making process. My office also successfully fought the City of Detroit’s lawsuit to end Federal Court oversight of the DWSD. 

I am encouraged about the future of the DWSD because of a comprehensive report which calls for a wholesale reorganization of the department. It gives me hope that years of bloated bureaucracy and mismanagement at the DWSD are finally nearing an end. But despite the encouraging signs of progress, there is still much work left to do. One thing I strongly recommend is that a second opinion be sought before any drastic cuts or changes are made to the DWSD operation. In addition, it would be a good idea to search out other entities nationwide which have been successful in transforming their water/wastewater systems into well-managed, cost-effective and efficient operations. 

As the DWSD moves forward, my hope is that it will make a good faith effort to reassess how it does business and provides services. The reality is that the water and sewer industry is rapidly changing. That means we need to improve the operating process to reduce costs by instituting new water technologies, as Oakland County has sought to achieve with its innovative H2Opportunities program. The fact is our underground infrastructure is aging and decaying, making innovative methods to streamline current practices absolutely essential.

Click here for the full text of Mr. McCulloch's final message, which also addresses his accomplishments with the Oakland County WRC, his principal charge.

For more about DWSD Update, click here. 

Union Moves to Intervene into EPA Lawsuit, Challenges Judge Cox's Recent Order

Making good on threats made last week to challenge Judge Sean Cox's November 4, 2011 Order adopting the Plan of Action, AFSCME Council 25 earlier today filed a Motion to Intervene in the 1977 EPA Lawsuit seeking to block implementation of the Court's order as it pertains to collective bargaining rights. 
2011-11-24.Motion to Intervene in EPA Lawsuit by AFSCME Counil 25

For more about DWSD Update, click here.

Committee to Plan Overhaul of DWSD Operations is Named

The Committee ordered by Judge Cox to develop a plan to overhaul the Detroit Water and Sewerage Department by November 4, 2011 (the "Root Cause Committee") will include the following members:

• Charles Pugh, City Council President
• Gary Brown, City Council President Pro Tem
• Chris Brown, Mayor Bing's COO and Acting Director of DWSD
• James Fausone, Board of Water Commissioners

Update (10/12): Judge Cox entered an Order today expanding the authority of his Special Master, David M. Ottenwess, to "direct and facilitate discussions" with the parties noted above and "to report to the Court [on] the progress and status of those discussions and the proposed plan." [Dkt #2405]

ESD Consensus Action Report: DWSD, The Road to Compliance and Beyond

One of the reports cited in Judge Sean Cox's September 9, 2011 Opinion and Order Denying the City of Detroit's Motion to Dismiss the 1977 EPA lawsuit was a 2010 report prepared by the Engineering Society of Detroit (ESD) Blue Ribbon Advisory Panel.  A copy of this report was filed by the Court earlier today.

• Engineering Society of Detroit, Detroit Water and Sewerage Department Waste Water Treatment Plant: The Road to Compliance and Beyond (July, 2010).  

Comment:  In my view, the ESD Report and the Recommendations of the ESD Institute will be the blueprint followed by the Committee ordered by Judge Cox to devise a plan within 60 days.  For those of you with personal knowledge of the WWTP and its operation, I invite your comments as to whether you think the ESD report is accurate or off-base.   

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.

City of Detroit Petitions Federal Court to End Decades-Long Oversight of DWSD

On July 25, 2011, the City of Detroit petitioned U.S. District Judge Sean Cox to dismiss the federal lawsuit originally filed in 1977 by the U.S. Environmental Protection Agency to remedy violations of the Clean Water Act by the Detroit Water and Sewerage Department.

For the past 34 years, the federal court (Judge John Feikens) has overseen the City of Detroit Water and Sewerage Department (DWSD) and enforced a series of consent judgments designed to bring the Department's waste water treatment plant (WWTP) into compliance with its NPDES discharge permit. 

On July 21, 2011, DWSD and the Michigan Department of Environmental Quality (DEQ) entered into an Administrative Consent Order, which is designed to supersede the Second Amended Consent Judgment entered by the federal court in August, 2000.

In its July 25, 2011 Motion to Dismiss and for Relief from Second Amended Consent Judgment, the City of Detroit requests that Judge Cox dismiss with prejudice the 1977 lawsuit because the Administrative Consent Order will serve the same purpose as the Second Amended Consent Judgment and the DEQ will provide for more appropriate oversight and enforcement: 

"[The Administrative Consent Order] provides a more comprehensive and current structure for addressing the compliance issues that DWSD is facing and for ensuring DWSD's long-term compliance. While the DWSD has made substantial progress under the [Second Amended Consent Judgment], ultimately the SACJ was not sufficient to sustain long-term compliance. The ACO will take DWSD through to full compliance."

No hearing date has been set for the City's motion.

Comment: The City's motion to dismiss the 1977 federal case should not come as a surprise. The City has sought for years to end federal oversight of DWSD. But it took the retirement of Judge Feikens to clear a path to the end of the case.  Shortly after Judge Cox took over the case in November, 2010, he signaled a desire to end the decades-long oversight of DWSD. In February, 2011, Judge Cox disbanded the advisory groups that had grown up around the case. Public opinion favored ending federal oversight.

As part of Mayor Bing's breakthrough agreement with Wayne, Oakland and Macomb Counties, and the February 11, 2011 Stipulated Order that led to a more autonomous Board of Water Commissioners, the Court allowed for any party to seek dismissal of the case upon a showing of substantial compliance with the Second Amended Consent Judgment. 

The City's pending motion represents that DWSD has achieved substantial compliance with the federal consent judgment and that the new Administrative Consent Order with the Michigan DEQ will see it through to full compliance. Time will tell, but now is the time to end 34 years of federal supervision. 

Resources:

• City of Detroit's (DWSD) Motion to Dismiss and for Relief from Second Amended Consent Judgment - 07-25-2011 
• Exhibit A - Administrative Consent Order with MDEQ - 07-22-2011  

For more about DWSD Update, click here.

Commissioners Can Only Be Removed for Cause, City of Detroit Concedes

When Mayor Bing agreed on February 11, 2011 to give Wayne, Oakland and Macomb Counties greater participation in the oversight of the Detroit Water and Sewerage Department, it remained an open question whether members of the Board of Water Commissioners would serve at the pleasure of the Mayor or whether they could only be removed for cause. 

In a recent federal court filing, the City of Detroit agreed that Commissioners can only be moved for cause. Judge Sean Cox accepted this as a stipulation and entered an Order on April 29, 2011 to the effect that Detroit Board of Water Commissioners can only be removed for cause.

Comment: A "for cause" standard is a much higher standard than merely "serving at the pleasure of the Mayor." It means that a Commissioner cannot be removed absent a showing that they are unfit or unable to perform their duties as a Commissioner. Suburban stakeholders in the Department pressed for this higher standard and now it appears they have prevailed. In my view, this is designed to protect the integrity of the Board of Water Commissioners, which should exercise more oversight and ask more questions about how DWSD functions.

2011-04-29.ORDER.Members of Detroit Board of Water Commissioners Shall Only Be Removed for Cause

DWSD - Crain's Article Highlights Operational Woes at Detroit Wastewater Treatment Plant (WWTP)

Crain's Detroit Business published a feature article on May 22, 2011 outlining the problems at the City of Detroit's main wastewater treatment facility. Problems include inadequate sludge de-watering, leading to a build-up of the "solids inventory," delayed repairs, cumbersome purchasing practices, and a looming personnel problem as a large percentage of DWSD management personnel approach retirement without an effective succession plan in place. 

 

DWSD Update outlined these same issues in an article published last September, 2010 shortly after DWSD submitted its Corrective action Plan to the federal court.

DWSD Proposes to Overhaul Operations at WWTP to Address Permit Violations

In response to Violation Notices issued by the State of Michigan DNRE on November 12, 2009 and again on April 14, 2010,  the Detroit Water and Sewerage Department has submitted a 28 page Corrective Action Plan (CAP). 

The CAP outlines DWSD's plan to bring its waste water treatment plant (WWTP) back into compliance with the City's NPDES discharge permit. The permit violations, discharging high concentrations of sludge (TSS),  are primarily the result of the City's inability to dewater and dispose of sufficient quantities of biosolids (sludge). 

Earlier reports have identified multiple causes of this problem, including equipment failures, inadequate preventive maintenance, lack of spare parts, and limitations on off-site disposal. The Synagro contract, canceled  in January, 2009 under the cloud of scandal, was designed to alleviate some of these problems.

Oakland Macomb Interceptor Drain - Macomb County Petitions Court to Order a Repair Schedule

On June 12, 2009, Macomb County filed a motion in U.S. District Court requesting that Judge John Feikens enter an order that would establish a schedule for the repairs to the Oakland Macomb Interceptor (OMI) Drain. The details of this project were reported in an earlier post.

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[Note: While a construction compliance order will make it easier for Macomb and Oakland Counties to secure State Revolving Fund (SRF) funding, it suggests that Judge John Feikens' 32 year oversight of the Detroit Water and Sewerage Department will not only continue, but expand northward into Oakland and Macomb Counties. Is this sort of thing a good idea? ]

Upper Rouge CSO (North) Tunnel, Bids Canceled

The Detroit Water and Sewerage Department (DWSD) has canceled plans to bid the Upper Rouge CSO (North) Tunnel (PC-763). Addendum No. 5, dated February 23, 2009, but received yesterday by plan holders, advised bidders that DWSD was not going to be taking bids on the project at this time. There was no official explanation offered by DWSD for cancellation of the North Tunnel.

Work will continue, however, on the Upper Rouge CSO (South) Tunnel (PC-764), which was awarded to Kenny/Obayashi, JV in September (reported here).

The Upper Rouge CSO Tunnel project is a requirement of the Department's NPDES Permit, and is subject the Second Amended Consent Decree in the EPA Litigation.

[Update: On March 18, 2009, McGraw Hill Dodge Reports indicated that this project was on hold until 2014. ]

DWSD Board of Water Commissioners Approves Proposed Settlement

On January 28, 2009, the DWSD Board of Water Commissioners voted unanimously to approve a landmark settlement (reported here) with its suburban customers. The agreement must also be ratified by Detroit City Council, where questions about the sale of the Oakland-Macomb Interceptor (OMI) are likely to be raised. Wayne, Oakland and Macomb Counties also must ratify the agreement. Attorneys representing these counties reportedly told the Court at a hearing in December that they would recommend the terms of the settlement to their respective clients.

City of Detroit, Suburbs Reach Accord Regarding DWSD

The long-simmering dispute between the City of Detroit's Water and Sewerage Department (DWSD) and its Suburban customers reportedly was resolved on December 18, 2008 in a hearing in U.S. District Court before Judge John Feikens. An outline of the settlement was reported earlier by Crain's Detroit Business here, and by the Detroit Free Press here.

The terms of the accord are laid out in a 50 page Settlement Agreement (below) that was presented to the Court, and will be accepted unless someone comes forth to show cause why the Agreement should not be accepted. Opposition is unlikely.

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This Settlement Agreement will not end Judge Feikens' three-decades long control over DWSD, -- paragraph 8 of the Agreement refers to a potential Third Amended Consent Judgment -- but it will end lengthy and costly litigation between DWSD and Oakland and Macomb Counties over repair of the Macomb Interceptor and payment for an 800 megahertz radio system.

Federal Oversight of DWSD May Be Near End

The Detroit Free Press reports that Judge John Feikens, who turned 91 on December 3, 2008, may be ready to end his supervision of the Detroit Water and Sewerage Department. Feikens, who has overseen the Department since 1977 as part of a pollution lawsuit settlement, has sought a global resolution of a number of outstanding disputes between the Department and its suburban customers.

"Feikens said the system now complies with the Clean Water Act, but he worries that falling revenues caused by decreased water consumption this year could make it hard to fund improvements still needed to maintain that compliance. But Feikens said that if the region can work together, court supervision could become unnecessary."

Under Judge Feikens' supervision, DWSD has spent hundreds of millions of dollars on upgrades to its main wastewater treatment plant.

The Southeast Michigan Council of Governments (SEMCOG) recently reported that Southeast Michigan communities, including the City of Detroit, had spent $2.4 billion in projects designed to reduce combined sewer overflow (CSO) pollutant discharges, resulting in an 85 percent reduction in untreated CSO discharges.