City, County Dispute Over MSD Shows No Signs Of Ending

Feb 19, 2020

A Cincinnati council committee and the Hamilton County commissioners could hold a joint meeting in two weeks to discuss ongoing issues and disagreement concerning the Metropolitan Sewer District. Meanwhile, the county filed a motion in federal court last weekend asking that a judge hold the city in contempt of court for violating a consent decree to reduce sewer overflows.

One statement in the county's court filing summarizes what the current fight is about:

"Without county agreement or approval—or even its knowledge—the city submitted an alternative Phase 2A plan to the regulators while declaring that the costs of Phase 2 have increased more than $1 billion. If true, and if MSD costs are not reined in and Phase 2 of the consent decree is not wisely negotiated, the delays to the consent decree and the impact on ratepayers will be staggering."

The county commissioners grilled MSD Director Diana Christy about the increased cost of Phase 2 and MSD's alternate plan for Phase 2A during a meeting last week.

The city and county are co-defendants in a 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.

City Council Member Greg Landsman said Wednesday he spoke with County Commission President Denise Driehaus about holding a joint meeting to get all the facts on the table and in the open.

Those issues involved repairing a broken sewer main in Muddy Creek in Green Township, the projects and timelines for Phase 2 of the consent decree, and the governance issue surrounding MSD.

"We're committed to figuring out how to get this resolved," Landsman said. "This being Muddy Creek, Phase 2, the larger governance issues that are going to have to get resolved - otherwise we're going to keep finding ourselves in this situation and it's horrible for ratepayers and it's horrible for the environment."

MSD officials said the Muddy Creek repair has been stalled for more than year because the county has limited the budget for the project, and also said that overflows can't be moved further downstream by the work. MSD said its plan to install a 36-inch pipe has been reviewed and recommended by outside consultants.

Landsman said he trusts the MSD engineers and their recommendations.

"If this is what they believe is the best or in some cases, in this case, the only way to move forward, we have to do that," Landsman said. "If for some reason the county's able to offer up something that we have not taken up or considered, I want to be able to do that together and make sure that's out in the open."

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

MSD completed a report in January to show there were deficiencies in the regulators' plan, and that those projects and schedules "could not be realistically implemented." The county said it was not involved in drafting that report.

MSD officials said last week the report they prepared was not an "alternative" plan, even though their lengthy written document references that in a couple different places.

One council member asked if federal regulators could force MSD to enact the plan provided last summer.

"I think the regulators' position is that this is the schedule that they can impose and I think the co-defendants, our position is that this is something that needs to be negotiated and there are pending motions in front of Judge Barrett on that," said city attorney Emily Woerner.

Judge Michael Barrett is the federal judge assigned to the consent decree case.

He has ruled, and an appeal's court upheld, that the county is the "principle" of the sewer district, responsible for setting rates and budgets. The city is the "agent" operating the utility.

A 1968 agreement set up that arrangement, and it expired in 2018, but the judge has ordered the parties to continue it.

The two sides had reached an agreement in 2017 for a five-member citizen board to handle major policy decisions for MSD, including hiring the director. But that plan fell apart when Ohio lawmakers failed to approve legislation to allow MSD employees to work for Hamilton County but remain in the Cincinnati pension system.

The county again in its latest court filing stated the issues will not be resolved until the county is given full control of MSD.

"To allow the city to continue to disregard and act contrary to the board's (board of county commissioners) instructions, and spend restricted sanitary funds in ways contrary to the board's interests violates the consent decree's mandate that the board implement and achieve the consent decree as expeditiously as possible," reads the court document. "That can only occur when the board is truly in charge of its own sewer district and all consent decree parties respect that role and act accordingly."

The city has not filed a response to the county's weekend court document.