Plan in motion after day two in EPA hearing

May 1, 2013 By Mark Fahey

The second day of a hearing to resolve a multi-million dollar dispute between the City of Washington C.H. and the Ohio Environmental Protection Agency (EPA) ended Wednesday with a plan to help the two parties reach an agreement.

After hearing two days of evidence, Fayette County Judge Steven Beathard asked attorneys for the city and EPA to submit arguments addressing the EPA's claim that the city owes $3,150,500 in penalties for failing to follow through after signing an agreement with the agency in January 2007.

In signing the consent agreement with the EPA, the city said they would fix problems with the city's aging sanitary sewer system within three years, but significant disagreements over the cost and time allotment prevented the project from ever getting started. The court asked both parties to send representatives to a private mediation meeting to be scheduled sometime in the next two weeks to resolve their differences.

"I have to make certain that the work gets done, so there is no question that it's going to get done," said Beathard at the hearing. "If the two parties are able to resolve the construction issues, I'll resolve the contempt issues. You all can build a better sanitary sewer treatment plant than I can and I'm hesitant to delve into something that I may not be capable to do, and it might not be in the best interest of the citizens of Washington C.H."

The city's attorneys challenged the EPA's three contempt allegations, that the city had failed to submit an improvement plan that met the consent agreement's criteria, that it had failed to report pollution levels in some cases, and that it had continued to exceed the permitted pollution levels in water released into Paint Creek.

According to the city, the three years provided for in the original agreement was not a plausible length of time in which to resolve the city's sewage issues. In an engineering plan commissioned by the city after signing the agreement, system upgrades were projected to cost $60 million and take about 30 years to complete.

City Services Director Joe Burbage testified on Wednesday that necessary improvements would cost about $30 million. However, EPA Compliance Manager Sheree Gossett-Johnson contended that many of the projects included in the city's estimates were not strictly necessary to meet the environmental guidelines in the city's wastewater plant operating permit.

Gossett-Johnson, the sole witness for the plaintiffs, was called to the stand on both Tuesday and Wednesday.

Wastewater Plant Superintendent Allen Dawson testified on Wednesday, attributing many of the allegations of failed reporting, which made up the majority of the alleged violations included in the contempt charge, were due to mistakes by the EPA or a glitch in the agency's reporting software.

The defendants also called Professor Paul Gottlieb from Rutgers University as an expert witness to describe his analysis of the city's ability to pay for the needed improvements over time. Gottlieb said that the city had a number of risk factors that would require it to spread its investment in new sewer infrastructure over as many years as possible, citing the city's high poverty rate relative to the state, high percentage of senior citizens and heavy dependence on manufacturing as reasons to avoid increasing citizens' overall financial burden.

Washington C.H. residents pay more than most similar cities in southern Ohio for their water and waste services, said Gottlieb, and the cost estimates provided by the city would lead to a 63 percent increase in sewer costs.

Gottlieb suggested that instead of a fixed schedule, the state should instead set the city's investment at a certain percentage of the median income in the city.

"With the commonly-agreed-to 20 year schedule, many cities have found that they've run into some problems and they've gone back and renegotiated," said Gottlieb. "So there's a type of turmoil, if you will, with a 20 year schedule, you go back and it becomes a longer schedule anyway."

The plaintiffs questioned Gottlieb's support of a 30-year plan for the city, which was significantly longer than the 20 years usually recommended for cities that will experience a substantial tax burden from the sewer improvements.

Representatives on both sides expressed a desire to reach a deal that would allow the city to fix its sewer system, which sometimes dumps untreated waste into Paint Creek.

"Sometimes it takes a hearing to get people to focus on all the issues and the differences," said Frank Reed Jr., counsel for the city. "You can see that the leaders of the City of Washington C.H. and all the key personnel are here. We're absolutely committed to doing a schedule that we think is consistent with what other cities of our magnitude and size and difficulty financially are being required to do."