Judge Cox Denies as Untimely AFSCME Council 25 Motion to Intervene in EPA Lawsuit

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]
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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.
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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. 

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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.

2011-11-18.Opinion and Order Denying AFSCME Council 25 Motion to Intervene

For more about DWSD Update, click here. 

Update (11/29): AFSCME Council 25 filed a Notice of Appeal to the Sixth Circuit Court of Appeals today. See, USA v City of Detroit, Case No. 11-2517.

PC-786, Lakeshore Engineering Submits Low Bid on Rouge River Outfall (RRO-2) Project

Lakeshore Engineering submitted the low bid earlier this afternoon on the project known as DWSD Contract PC-786, Rouge River Outfall No. 2 (RRO-2) Segment 1, WWTP Modifications:

1.   Lakeshore Engineering - - - $11,855,749*

2.  Walbridge Aldinger - - - - - $12,970,000**

3.  Walsh Construction - - - - - $13,117,000

4.  Weiss Construction - - - - - $13,391,000

5.  Detroit Contracting - - - - - $14,021,000

6.  L. D'Agostini & Sons - - - - $14,702,250

7.  O'Laughlin Construction - $15,232,600

This project was previewed at a June 22, 2011 public hearing and reported here.

For more about DWSD Update, click here. 

* Update (11/22): DWSD Update has learned that Lakeshore Engineering asked the City of Detroit to retract its bid on this project in a letter dated November 17, 2011.   

** Update (12/21): Earlier this afternoon, at a Special Meeting, the Board of Water Commissioners approved a contract with Walsh Construction for $13,117,000. This followed adoption by the Water Board of a resolution suspending Walbridge Aldinger, and 13 other contractors,  for a period of 3 years.  

Detroit Water Board Approves Hiring of New Director, Sue McCormick

The Detroit Board of Water Commissioners earlier this afternoon  approved Mayor Bing's candidate for Director of the Water and Sewerage Department. At a Special Meeting held earlier this afternoon, the Water Board voted unanimously to approve the hiring of Sue McCormick as the new Director.  She will be paid $195,000 annually and begin work on January 2, 2012. 

According to Chris Brown, Mayor Bing's COO, Ms. McCormick was selected after considering a pool of some 85 candidates for the position.

Under the terms of the Plan of Action adopted by Judge Cox on November 4, 2011, the new Director will have broad new powers to bring DWSD back into compliance with the Clean Water Act.

DWSD has been without a permanent Director since Pamela Turner retired (or was forced out) more than 18 months ago.

The Water Board also used the occasion of the Special Meeting today to approve a one year contract with Butler Benton (B2 Advisors, LLC), who will serve as the financial advisor to the Water Board. B2 Advisors will be paid an amount not to exceed $100,000.


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.

Mayor Bing Announces Choice for New DWSD Director

Sue McCormick was introduced to the Detroit Board of Water Commissioners on November 9, 2011 as Mayor Bing's choice for the new Director of the Detroit Water and Sewerage Department.

Ms. McCormick, who currently serves as the Administrator of Public Services for the City of Ann Arbor was introduced by Chris Brown, Mayor Bing's COO, to members of the Water Board who were participating in a workshop meeting. The Board must vote to approve her selection at its next scheduled meeting on November 16, 2011. If approved, Ms. McCormick would start January 1, 2012.  

Update (11/11): The next Water Board meeting is November 30, not the 16th as originally reported. Click here for the Board calendar.  Also, AnnArbor.com has a story (here) detailing Ms. McCormick's responsibilities with the City of Ann Arbor. 

Update (11/14): The Water Board will be holding a Special Meeting on November 16, 2011 to consider and vote on Sue McCormick for Director. 

For more about DWSD Update, click here.

Former DWSD Head Engineer Weighs in on Changes Ordered by Judge Cox

Former Head Water Systems Engineer, Dennis L. Green, P.E., who retired from DWSD in 2009 after more than 40 years of service, recently weighed in on the recent changes ordered by Judge Cox in a Letter to the Editor published by the Detroit Free Press published (here) on November 8, 2011:

U.S. District Judge Sean Cox’s call for structural changes in the Detroit Water Department (“Judge Sean Cox’s ruling” Nov. 5) came on the heels of the disbanding of the DWSD Engineering Division. It’s no coincidence that the decades of struggle with EPA compliance similarly began on the heels of another event involving Engineering.

In 1975, a new Detroit City Charter replaced the tenured chief engineer with a director serving at the pleasure of the mayor and removed the requirement for a Professional Engineer (PE) license.

With civil service tenure’s protection from arbitrary dismissal, the chief engineer could take his objections regarding any ill-conceived policy of the mayor or Board of Water Commissioners to the public without fear of reprisal. A PE license requires an oath to protect the public health and safety, but serving at the pleasure of the mayor, an unlicensed director’s loyalty is to the administration before the public.

Prior to 1975, DWSD had a worldwide reputation for its engineering and operational success, and its professionals dominated the committees writing the industry's standards. Then, without the check and balance between public safety concerns represented by a licensed engineer and the politics of the Board of Water Commissioners, it took only two years for the politicians to wreck the nation's most respected water system, provoking acrimony with its customers and the EPA.

U.S. District Judge John Feikens’ oversight of DWSD was an abject failure. The billing squabbles between DWSD and its suburban customers festered for years. They eventually ended not because of the negotiating skills of his approved politicians and consultants, but as a result of an in-house engineering breakthrough that restored integrity to the billing process.

After years of failure by outside consultants, the Archer administration listened to me, my staff and people doing the actual work. Just like creating a credible water bill, creating a functional, efficient and maintainable treatment plant also begins as an engineering problem that can't be solved by imposing capricious court-ordered deadlines on politicians who won't or can't comprehend the problem.

If Judge Cox and Mayor Dave Bing want a working sewage treatment plant, they need to do what the proposed and existing charters fail to do: demand a director with a PE license, and make sure that director has sufficient political independence to do the job.

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.

McCulloch Updates Status of Oakland-Macomb Interceptor Project

Oakland County Water Resources Commissioner, John McCulloch, recently provided the following update on the status of the Oakland-Macomb Interceptor project:

Construction of the first phase of the Oakland-Macomb Interceptor Drain (OMI) Rehabilitation Project, which began in February of 2010, is now complete. The first phase, also known as Segment 1, consisted of two construction contracts, both of which were completed by Ric-Man Construction, Inc. These two contracts included the construction of five new permanent flow control / access structures and modifications to an existing flow control structure. Four of the five new structures include a very large steel stop gate. One of the structures includes a temporary pump station. These new facilities, operated in cooperation with Macomb County’s Clintondale Pump Station and Detroit’s Northeast Pump Station, will provide a means of controlling flow in the OMI system by using the upstream pipes for storage and temporarily backing up flow. The flow control plan will utilize alternating periods of storage and release to provide working time downstream to conduct rehabilitation work in subsequent phases of the project.

Design for the second phase of the project has been completed and plans and specifications have been issued for bids. Bids will be received on October 25, 2011. Construction is expected to begin by January of 2012. Rehabilitation of the pipe in the lower half of the OMI system will begin with this phase, utilizing the flow control made possible by the facilities constructed in the first phase. Work will include cementitious grouting of voids outside the interceptor, chemical grouting of leaks and localized repair of the pipe wall. In addition, modifications will be made to the Northeast Pump Station including the installation of a new 1,250 horsepower variable frequency drive pump. Construction costs are estimated at $20.2 million. This phase of the work is scheduled to take approximately two years.

As construction on the second phase of the project gets started, design efforts will begin on the third phase. The third phase has two major components: 1) installation of a permanent liner in sections of the interceptor where hydrogen sulfide has affected the long-term integrity of the pipe, and 2) rehabilitation of a restricted section of the interceptor that was previously repaired but is again in need of attention. Various rehabilitation methods are being evaluated to determine the type of lining to be used. Slip lining and spiral wound lining are the two methods being given the most consideration at this time. The rehabilitation of the restricted section of pipe likely will include construction of a new parallel sewer. Construction of phase three is expected to overlap with phase two and is expected to begin in 2013.

For more information about the Oakland-Macomb Interceptor project, click here, here, and here. 

For more about DWSD Update, click here.

Inland Waters Submits Low Bid on OMID Contract 3 Re-Bid

Earlier today, Inland Waters Pollution Control submitted the low bid on the Oakland Macomb Interceptor Drain (OMID) Contract 3, Re-Bid.

1. Inland Waters - - - - - - - - $17,965,840
2. Lanzo Lining Services  - - - $18,347,000
3. Jay Dee Contractors  - - -  $21,556,900

As we noted here, bids for Contract 3 were originally received on July 19, 2011, but thrown out because they reportedly exceeded the Engineer's Estimate.  Macomb County officials denied their decision was motivated by the lawsuit they had filed against Inland Waters and 39 other contractors on July 18, 2011.  When the bids were opened this morning, the Engineer's Estimate was reported to be $20,195,000.

For more about DWSD Update, click here.

PC-787, Lakeshore Engineering Submits Low Bid on Belt Filter Press Project

Earlier today, Lakeshore Engineering submitted the low bid on the project known as DWSD Contract PC-787, "WWTP Upper Level Belt Filter Presses Rehabilitation."

1. Lakeshore Engineering - - $28,960,000

2. Weiss Construction - - - - $30,216,000*

3. Walbridge Aldinger - - - - $30,525,000

4. Walsh Construction - - - - $30,975,000

5. Tooles Contracting - - - - $32,397,000

As we noted here, Contract PC-787 involves the replacement of 22 belt filter presses in Complex I and Upper Level Complex II at the Detroit WWTP.

*Update (2/22):  Weiss Construction was awarded the contract for this job on February 12, 2012 (here).

For more about DWSD Update, click here.