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. 

For more about DWSD Update, click here. 

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 Adopts Plan of Action for Overhaul of DWSD

On November 4, 2011, Judge Sean Cox entered an Order adopting the Plan of Action submitted by the Root Cause Committee that was created by his September 9, 2011 order.

Comment: We are studying the Court's Order and Plan of Action, and will have a complete review and analysis shortly. Suffice it to say, the Plan of Action put forward by the Root Cause Committee, which Judge Cox has now adopted by his Order, requires major changes to the way DWSD operates going forward, including its procurement policy. These changes are long overdue. 

2011-11-04.Judge Cox Order Adopting Plan of Action for DWSD Proposed by Root Cause Committee

For more about DWSD Update, click here.

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.   

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 Suspends Upcoming Projects, New Strategic Plan in the Works

On May 3, 2011, the Detroit Water and Sewerage Department announced that it would revisit the spending outlined in its 2011-2015 Capital Improvement Program (CIP), for both water and wastewater construction projects.  The CIPs are updated annually; the last update was in July, 2010.

Deputy Director Darryl Latimer notes that DWSD "will be engaging in a detailed review of every project in the CIPS, striving to produce revised plans to be published by July 1 [2011]." 

Therefore, effective immediately, ALL projects that have not yet been initiated are to be halted until further notice. Work can only proceed with specific and formal authorization from the office of the Assistant Director of Financial Services prior to the final authorization from the Deputy Director. This includes task authorization of as needed services, amendments and new contracts.

Commentary: It is unclear whether Mr. Latimer's reference to "projects that have not yet been initiated" means some or all of the projects listed on DWSD's April, 2001 "Proposed Quarterly Construction and Consultant Contracts." If so, this would mean further delays in bidding and construction of the Springwells Water Treatment Plant 1958 Filter Rehabilitation Project (SP-563).  The Springwells WTP project is listed as a "New Project" in the July, 2010 Water Supply System CIP, with an estimated budget of $120 million.  This highly-anticipated project was to have come out for bids in late-2010, and then early-2011. Stay tuned as things develop.  

DWSD Strategic Planning Initiative - May 3, 2011

Oakland County Petitions Court to Appoint Interim Regional Committee to Operate Detroit Water and Sewerage Department

In the wake of federal indictments last month, and state legislation to create a regional water authority introduced only 2 weeks ago, Oakland County  today filed a motion in federal court seeking the creation of an Interim Regional Management Committee "with the full power and authority to control, manage and operate" the Detroit Water and Sewerage Department and its wastewater treatment plant (WWTP).  The motion will be considered by Judge Sean Cox, who replaced Judge John Feikens after he stepped down in November, 2010. No hearing date has been set on the motion.

2011-01-26.Oakland County Motion for Appointment of Interim Regional Management Committee

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.