Feds On MSD: 'Consent Decree Implementation Is Languishing'

Mar 9, 2020

The regulators overseeing the Metropolitan Sewer District federal consent decree are responding to the latest court fight concerning work on the next phase of the agreement.

Hamilton County, which owns the sewer district, is asking that the city, the manager of MSD, be held in contempt of court for violating the consent decree.

The county argued in a Feb. 15 court filing that the city, without county approval, submitted an alternative plan for projects to be completed in the second phase of the consent decree. The county is concerned the price tag for that work increased by $1 billion.

On Feb. 27 the city rejected that argument, and said officials were responding to a Phase 2 plan issued by regulators. The city argues its validation report provided information to regulators and was not an alternative plan as the county argues.

The regulators' filing includes the U.S. EPA, the Ohio EPA, and the Ohio River Valley Water Sanitation Commission.  A federal court brief filed Friday reads in part:

The regulators do not believe the county has shown grounds for any of the relief sought in this motion, except for its request for a ruling on the pending dispute resolution, which all parties support, even if they seek differing outcomes. (This dispute involves asking the federal court to decide whether the city has to follow the county's plan for phase two.  The city and county submitted different proposals.)

More than a decade after the consent decree was entered by the court, the sewer system for which the county and the city are responsible continues to discharge an estimated 8 billion gallons of illegal, untreated sewage into area waterways in a typical year. Approximately 218 projects required by the consent decree to bring the defendants' sewer system into compliance with the Clean Water Act remain to be constructed.  And yet, because of the defendants' continuing impasse with each other and the county's current refusal to engage in Phase 2A schedule discussions, consent decree implementation is languishing.

The main point of this brief is to re-emphasize the regulators' position that the county and the city—"Defendants' as the decree says throughout—are jointly and severally responsible for compliance with the consent decree, and neither can avoid that responsibility by pointing fingers at the other.  The regulators take no position on the day-to-day particulars of the county-city contractual principal-agency relationship in operating the sewer system nor in any other aspect of the political relationship between the city and county.  However, from the regulators' perspective, the city has been forthcoming and constructive in trying to move consent decree compliance forward. The city's continued involvement is critical to decree implementation, because the city (through MSD) performed the technical and engineering work on behalf of the defendants that underlies the entire WWIP (wet weather improvement program).  The city (through MSD) also continues to be the only one of the two defendants with the necessary technical expertise to design and implement projects, operate and maintain the sewer system, and, if the defendants decide they should seek changes to the WWIP, provide the technical support necessary to develop and advocate for effective proposals.

For Phase 2 work, regulators last summer issued a $938 million proposal that would run for 10 years.  That was what the city responded to with its validation report in January.

In 2018, the city 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.

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.