City vs. EPA trial begins

April 30, 2013 By Mark Fahey

A multi-million dollar dispute between the City of Washington C.H. and the Ohio Environmental Protection Agency (EPA) saw its first day in the Fayette County Court of Common Pleas on Tuesday.

At stake is $3,150,500 in penalties that the EPA says that the city owes for failing to follow through on an agreement to upgrade the city's aging sanitary sewer system, which sometimes dumps unprocessed waste into local waterways.

The city agreed to fix the sewer problems after the Attorney General's Office filed a complaint for civil penalties for violations of the city's National Pollutant Discharge Elimination System (NPDES) permit, which stipulates the levels of pollutants that can safely leave the city's waste water system.

According to the EPA complaint filed in Fayette County Common Pleas Court in January, the city "has discharged untreated waste water from the separate sanitary sewer system portion of its waste water collection system, via locations known as sanitary sewer overflows, to Paint Creek and tributaries of Paint Creek."

The contempt filings allege that the city has failed to meet the terms of the consent order by failing to submit an adequate System Evaluation and Capacity Assurance Plan (SECAP), failing to comply with pollution limits and failing to report pollution levels in some cases.

"They have what we would consider fairly typical problems, they just haven't been able to address them in a timely manner," said Sheree Gossett-Johnson, who supervises compliance for the EPA in Fayette, Madison, Franklin and Pickaway Counties, in her testimony Tuesday.

According to the EPA, the city owes substantial penalties for each violation, but legal counsel for the city argued that it would be impossible for the improvements to be completed in the three-year period allowed by the consent agreement.

City Manager Joe Denen testified that although it was evident at the time that the project could not be completed in the given time, the city was led to believe that the end date could be amended to accommodate new information as the project moved forward. Without the agreement, he said, the EPA would not approve permits needed for the Trotters Point residential development project in the city.

"Effectively, we really didn't have any other choice. If we didn't sign the consent order, the impression that the city was under was that economic development would cease and we wouldn't get any more [permits]" said Denen. "They had always indicated that the 2011 date was ambitious, but when you sign the consent order you don't know what the projects are or how much they cost."

Signing the consent order at that point seemed like it was in the best interest of the city, said Denen. The scope of necessary improvements wasn't clear until after the agreement had been signed.

"We didn't have a fortuneteller," said Denen.

After signing the order, the city hired an engineering firm to determine what improvements would be necessary. The report indicated that the projects would cost more than $60 million and would take longer than 15 years to implement, said Denen.

But when the city submitted its SECAP proposal with the new information, the EPA rejected it on the grounds that it did not meet the original time limitations.

Gossett-Johnson told the court that the EPA had warned the city that three years was a "very aggressive" time frame for completing the project and that by her accounting, the improvements would take about 15 years.

"That's what the city presented to us," she said. "We're not going to argue with them if they're going to be exuberant."

But Washington C.H. Service Director Joe Burbage said that it had been the Ohio EPA that first suggested the three-year plan and that EPA representatives had indicated that the deadline could be moved after specific projects were decided upon.

"We discussed a lot of different alternatives and they said the date of July 1, 2011," Burbage said at the hearing. "We were concerned about that date and we even made the comment during discussions that if it was more than a certain dollar amount, that we would not be able to make that date."

After the improvement plan was rejected by the EPA, the city continued to improve its sewer infrastructure outside of the framework of the consent agreement, according to Denen and Burbage.

"The city has always taken its responsibility to protect human health and the environment seriously, and despite our inability to negotiate a schedule of improvements with Ohio EPA, we have proceeded with improvements to the sanitary sewer system," said Denen.

The city also voluntarily paid about $58,000 to the EPA when they exceeded pollutant limits, a move the city's attorney, Frank Reed Jr., said was made "in hopes to avoid escalating this dispute to this court today." Although negotiations with the EPA continued, the two parties could not reach an agreement on cost estimates for the project or how long the improvements should take.

"As long as the question of what compliance is is this sort of amorphous pit - is it $6 million, is it $28 million - I would argue that the City of Washington C.H. ought to be afforded the maximum amount of time conceivable, so we're in the 30 year range," said Denen in his testimony. "If you can't really define the problem for me, I would argue I want as long as as possible to go out and resolve it."

The city would find it difficult to accommodate a $3 million fine, said City Councilman Ben Roby after the first day of the hearing. He said the city does a good job managing the sewer system, given the challenges of handling heavy rainwater and the city's flat geography.

"I think we probably do a better job than maybe this whole issue would make us appear. I really do think we have very conscientious people," said Roby. "I'm just hopeful for a settlement that will be beneficial to the city."

The hearing will continue Wednesday with additional witnesses for the city, including expert witness Professor Paul Gottlieb from Rutgers University and Washington C.H. Wastewater Manager Allen Dawson.