Cincinnati Responds To County's Contempt Charge Concerning MSD Decree

Mar 6, 2020

Attorneys for Cincinnati say the city should not be found in contempt of court concerning the MSD federal consent decree.

The city filed a motion in federal court Feb. 27 responding to the county's motion on Feb. 15 asking that a judge hold the city in contempt of court for violating the decree to reduce sewer overflows.

The county argued that the city, without county approval, submitted an alternative Phase 2A plan to regulators with costs that have increased by more than $1 billion.

The city and county are co-defendants in the federal consent decree to bring MSD into compliance with the federal Clean Water Act. Several Phase One projects were completed in 2018 and 2019, but more work is needed to reduce sewer overflows during heavy rain events.

The city strongly rejects that accusation that it submitted an alternate plan to regulators in its filing.

"MSD officials responded to a five-month-old request from the regulators to evaluate the regulators' potential Phase 2A plan," read the city's motion. "This response, known as a validation report, provided the regulators, the county, and the rate-paying public with MSD professionals' best, most accurate information about the regulators' proposed plan. It does not create a new plan. It is not the city's Phase 2A submission. It does not state whether this should be the final Phase 2. And it does not state whether this plan is affordable to ratepayers."

The city attorneys also argued the county's latest action in federal court will further delay work on consent decree projects.

"This time, the county is further delaying the negotiation and implementation of Phase 2A by seeking a gag order from the court," the city's motion states. "The county wants to prevent MSD professionals from sharing the facts about the potential future projects necessary to clean our water and the amount it could cost us."

For Phase 2 work, regulators last summer issued a $938 million proposal that would run for 10 years.  

Those regulators acted after the city and county couldn't agree on a proposal.

In 2018, the city, as the manager of MSD, sent one plan, and the county, as owner of the sewer district, submitted another.

The city's 10-year plan had a price tag of $793.3 million. The county's plan was for five years at $450 million.

Regulators said the lack of a single plan violated the consent decree, so they issued their own proposal.

This is the latest battle in a decades long feud about who controls MSD.  A 1968 agreement that set up the system expired in 2018.  

A federal judge has ruled the parties must continue that arrangement until a replacement is found.  So far that new plan has been elusive.