Federal Judge On MSD: 'Stop The Finger Pointing'

May 14, 2020

A federal judge ruled this week the Metropolitan Sewer District must follow Hamilton County's plan for the second phase of projects that are part of a federal consent decree to reduce sewer overflows into streams and rivers.

But Judge Michael Barrett refused to hold MSD, or the city of Cincinnati as its operator, in contempt of court for providing its own plan for those projects.

Judge Barrett slapped both the county and the city on the hand for the ongoing feud about MSD, and who's in charge and who makes the decisions.

"If the parties are not able to stop the finger pointing and begin to work collaboratively, the court will be forced to implement more draconian measures consistent with this court's power to enforce the consent decree," Barrett wrote in his opinion and order.

He said there needs to be communication, honesty, cooperation, understanding, trust and a lack of judgement.

"Rehashing and revisiting what has happened in the past does not move the relationship forward. It is a waste of precious time and rate-payers' money," Barrett wrote. "It does not serve the citizens who are depending on these two governmental bodies to do their best with the resources available."

Barrett again referenced a previous ruling from his court, and the Sixth U.S. Circuit Court of Appeals, that stated "the city is the agent of the county for the operation and maintenance of the sewer system and is subject to the control and direction of the county in all matters related to those functions."

But the judge admitted that does not necessarily answer the question of who is in charge.

A now expired 1968 agreement established MSD. The county owns the "district" and sets the budget and policy for the sewer district. The city operates the utility and owns the assets it brought to the district in 1968.  Barrett earlier had ruled the city and county must continue to abide by the 1968 plan even though it expired in 2018.

"To be clear, the MSD is not a city of Cincinnati department which is funded by the county and it should not be treated that way," Barrett wrote. "However, the county is reminded that it should not micromanage MSD, but needs to allow MSD to do its job. In this regard, the county monitors' involvement has not been productive."

That county monitoring from April 2018 through December 2019 has cost ratepayers more than $6.2 million for hired employees, and outside contracts with accountants, engineers and legal counsel.

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.

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.

That led the county to file a contempt of court claim. Barrett denied that.

"The court concludes that the validation report submitted by the city does not rise to the level of a consent decree violation but is instead part of the scheduling process for the next phase of the remedial measures under the consent decree," Barrett wrote.

Barrett did agree the county's Phase Two plan should be followed by the city and MSD, but "that does not end the discussion."

"The court is not deciding that the county's phase 2A schedule must be implemented," Barrett wrote. "As the regulators point out, the consent decree sets forth a review process. The regulators must approve the phase 2A schedule. If the regulators decline to approve and provide comments, the city and the county will have a choice between revising the phase 2A schedule within 60 days or commencing dispute resolution again."

Barrett added he hopes the city and county can "resume mediated discussions" on this issue.