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.
                                            * * * 
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.

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.

Detroit Water Board Fills Financial, Technical Advisory Staff Positions

At a Special Meeting on October 6, 2011, the Detroit Board of Water Commissioners selected Butler Benton and Douglas Buchholz, P.E. to advise the Board on financial and technical issues.

As we reported in August, staff will assist the Board in reviewing rate setting, capital projects and other financial and operational matters. Staff are hired by, and report directly to, the Board of Water Commissioners, not DWSD or the Mayor's Office.

Staff positions were created under the February 11, 2011 Order, and formalized under Article VII of the Board's Amended By-Laws. A third staff position, not yet filled, will advise the Board on legal matters.

Butler Benton

Butler Benton is the former Director, Department of Environment, for Wayne County.  He served with Wayne County for 15 years. Mr. Benton has a Bachelor of Science in Accounting and an MBA, both from Wayne State University.

Mr. Benton is a member of the Clean Water Steering Committee of the ESD Institute.

Douglas A. Buchholz, P.E. is Director of Operations for Oakland County Water Resources Commission (WRC). Mr. Buchholz has worked for Oakland County since 1974. He became Manager of Operations and Maintenance in 1998 and was promoted to Director of Operations in 2009.

Mr. Buchholz directs the overall operations and maintenance of the Oakland County WRC field and office staff for water supply, wastewater and storm water disposal, lake level control, permits and inspections and customer service and billings.

He also represents WRC and Oakland County cities, villages and townships on Detroit Water and Sewage Department (DWSD) committees and work groups as a:

• Co-chair of the DWSD Water Technical Advisory Committee (TAC)
• DWSD Sewer Steering Committee member

Background  

He is a 1970 graduate of General Motors Institute with a Bachelor of Mechanical Engineering degree. He earned a Master of Science: Civil Engineering degree from the University of Michigan in 1973. 

Mr. Buchholz is also a: 

• State of Michigan Registered Professional Engineer 
• State of Michigan Certified Wastewater Operator Classification: A, B, C or D 
• Member of American Water Works Association 
• Member of Michigan Water Environment Association

For more about DWSD Update, click here. 

Update (11/30): The Board of Water Commissioners today voted to approve the hiring of Jim Ridgway as Technical Advisor to the Board.  The Board reconsidered its earlier decision (reported above) concerning Doug Buchholz.

Mr. Ridgway has a B.S. in Environmental Engineering and a M.S. in Civil Engineering, both from the University of Michigan. In addition, Mr. Ridgway was an Assistant Director with DWSD for 5 years during the mid-1980s. Click here for his LinkedIn profile.

Board of Water Commissioners, Updated By-Laws Posted Online

By-laws for the Detroit Board of Water Commissioners have been posted on the DWSD website (here).

The by-laws were updated on July 27, 2011 to incorporate changes made by virtue of two federal court orders entered by Judge Sean Cox on February 11, 2011 and April 29, 2011. This is the first time that the by-laws have been made available online.

PC-784, Ric-Man Submits Low Bid on Sewer Meter Project

Last Tuesday, September 27, 2011, Ric-Man Construction submitted the low bid on the project known as DWSD Contract PC-784, "Sewer Meter Installation."

1. Ric-Man Construction  - - - $4,379,000
2. Weiss Construction - - - - - $5,084,000
3. Lakeshore Engineering - -   $5,192,119.60
4. Detroit Contracting - - - - $5,752,300

The Work for DWSD Contract No. PC-784, “Sewer Meter Installation Sites DT-S-1, DT-S-3, DT-S-4, DT-S-5, DT-S-8, DT-S-10, DT-S-13, OC-S-1 and WM-S-2”, includes, but is not limited to construction/rehabilitation of existing sewerage metering facilities. 

Update (5/31/12): This contract is being rebid as Contract PC-784a on June 19, 2012. If you have Dodge Reports, its Project No. 200400858901. 

Flint Urged to Break Ties with Detroit Water Department

The City of Flint is being urged to break ties with the Detroit Water and Sewerage Department and join the Karegnondi Water Authority.

On September 7, 2011, officials from Genesee County and the Karegnondi Water Authority met with the Flint City Council to present a report prepared by Rowe Engineering, which compared the cost of upgrading the City of Flint's Water Treatment Plant ($61.5 million) with the cost of getting its water from the KWA (not specified). 

Analysis indicates that the cost of supplying water from the Flint River on a continuous basis will be greater than the proposed KWA Raw Water Supply Contract, but less than continued supply from Detroit. 

On September 18, 2011, an Editorial in the Flint Journal urged Flint officials to "fish or cut bait" on their decision whether to continue buying water from Detroit or join the Karegnondi Water Authority. The Flint Journal recommends that Flint support the new pipeline plan.

Additional Resources:

• Rowe Engineering, Analysis of the Flint River as a Permanent Water Supply for the City of Flint (July, 2011) (Flint River Study)
• Flint River Study, Appendices 1 to 8 
• Karegnondi Water Authority (Homepage)
• Karegnondi Water Authority (DWSD Update)
  

Comment: Maybe I'm missing something, but if the City Flint will only be buying raw water from the KWA, the City will still need to make capital upgrades to its water treatment plant. No? As things stand now, Flint's WTP is a back-up to the water it buys from DWSD. Won't Flint have to make the capital improvements outlined by Rowe Engineering to bring their water treatment plant into compliance? So that it can process the raw water it receives from the KWA pipeline? If someone knows the answer to these questions, please let me know. 

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.