Ohio AG warns commissioners over sewer fight
Penalty could be up to $11M
By JANELLE PATTERSON
January 16, 2018
The Marietta Times
The Ohio Attorney General’s office has offered one final opportunity to the Washington County commissioners to sewer Devola in total by 2025, with Lawton Road required by 2020.
If the county refuses, the commissioners are subject to a civil penalty of up to $10,000 per day, backdated to Jan. 18, 2015; to date, that cost is now north of $11 million.
The topic of sewering Devola and other outlying communities surrounding Marietta has been in discussions between not only the commissioners and the Ohio Environmental Protection Agency since 2000, but also the commissioners and city administration since about that time.
But since late 2014 through early 2015, plans outlined in orders from the Ohio EPA and a May 12, 2011 contract between the city and county to sewer Devola and Oak Grove have stalled.
To prevent further delay of remediation of health risks Assistant Attorney General Matthew Jalandoni penned a letter to the commissioners’ counsel, Assistant County Prosecutor Nicole Coil, on Jan. 8 requiring response by Jan. 22.
He states that the science behind orders to sewer Devola “has not changed” and further outlines funding, legal authority, the county’s “unreasonable delay” and recognizes the effects of litigation before presenting a final offer.
“Despite the disagreements and conflicting positions between our client Ohio EPA recognizes that any sewer project in Devola requires a significant financial commitment by your clients and Devola residents,” he wrote. “That is why your clients’ decision to stall the project for years is perplexing. Further delay and pushing this matter toward litigation only creates additional financial burdens for your clients and all Washington County residents, not just those in Devola.”
The Ohio EPA’s contention with the county commissioners is founded in a study conducted in August 2010 at the request of the Washington County Health Board confirming 2009 findings by the Putnam Community Water Association of high levels of nitrates in the drinking water.
The conclusion was that 509 documented dry wells in Devola, outlawed in 2010 by Ohio legislators, were contaminating groundwater, which when filtered becomes drinking water.
The contamination noted throughout the Devola area included Escherichia Coli (E. Coli) in the reports of recreational water and groundwater areas.
After commissioners questioned whether those findings were still accurate, given the update of the water plant to a reverse osmosis plant, the Ohio EPA updated their samplings in 2016, confirming that nitrates were still present in the ground water.
Noted in the 2016 update the estimated cost to sewer Devola stood at a capital cost of $7.2 million with an annual debt estimate of $364,175, operations cost at $797,112 and annual cost per household at $816, or $15.70 per week.
“(The) Ohio EPA’s objective throughout this discussion has been to abate the ongoing water pollution that its scientific data has shown is caused by failing septic systems in Devola,” the letter states. “Ohio EPA does not need to litigate the scientific basis for its orders requiring sewers in Devola…(The county commissioners) were under no obligation to sign the (orders to sewer Devola) in 2012 and could have litigated the scientific issues at the Environmental Review Appeals Commission in 2012. However, (the county commissioners) chose not to do that and instead agreed to resolve the matter without litigation, placing themselves under an enforceable obligation to sewer the community.”
The letter further states that neither the science noting the harmful nitrates, nor the law, have changed since 2012 and notes that the commissioners may apply, like any other governmental entity, for low-interest loans through the Ohio EPA Water Pollution Control Loan Fund.
He noted that for the next project year the Ohio EPA is “making $50 million available for regionalization projects through the WPCLF’s Regionalization Discount.”
‘This is certainly not the first time this situation has occurred in Ohio,” Jalandoni wrote. “The Ohio EPA has issued orders to other Boards of County Commissioners to construct similar sewer projects. Those County Commissioners then ordered residents to connect in order to address water pollution.”
In the final offer stated in the letter he outlined that should the Ohio EPA be required to obtain a court order to enforce the original 2012 orders to sewer Devola, “it will ask the court to order construction based on the original plan, not the extended timeline proposed in the consent order.”
And, noting a possible $10,000 per day penalty that could be imposed upon the county for not sewering since Jan. 18, 2015, Jalandoni writes that the offer given to the commissioners was favorable.
“Not only has the Ohio EPA shown flexibility from the original, shorter timeline that it could enforce, but it has also not pursued a civil penalty against (the commissioners),” he said.
The final offer: completion of sewering for Lawton Road (an estimated 62 residences) by July 1, 2020 and the rest of Devola by July 1, 2025, with no civil penalty attached.
“Any further counter offers or failure to accept by 5 p.m. Jan. 22 will be treated as a rejection of Ohio EPA’s offer and this proposed consent order will be revoked,”he stated.
When contacted for comment Commissioner David White said the commissioners had met in executive session to discuss the offer last week.
“There won’t be a response until Thursday (at the weekly commissioners meeting),” he said. “And I don’t know what our response is going to be.”
Meanwhile the city’s counsel in the lawsuit the city has filed against the county for not following the 2011 contract schedule to sewer both Devola and Oak Grove by the end of 2015 and 2016 respectively said the OAG letter, while instructive, is not pertinent to the city’s lawsuit.
“The city echoes the content of the Attorney General’s January 8 letter while recognizing that the enforcement of the 2012 Findings and Orders against the county are separate and distinct issues from the pending litigation over the 2011 (contract),” said Matthew Dooley, the city’s counsel in the suit. “Nonetheless, the city hopes that the county will consider a global resolution to all issues by complying with the (contract.)”
Timeline of city and county sewer discussions and Ohio Environmental Protection Agency, Ohio Attorney General involvement:
¯ Mid-1950s: Marietta City Wastewater Treatment Plant built.
¯ 1983: City’s facilities plan mentions septic issues in Devola and Oak Grove, citing “widespread septic system failures.”
¯ 1987: Last renovation to the city plant.
¯ 2000: County Master Facilities Plan completed by Finkbeiner, Petis and Strout, Limited–a consulting firm–to address failing septic systems.
¯ March 2005: City Master Facilities Plan completed showing deficiencies in 50-year-old plant. Renovation in ’87 would only last until 2007 (per average livespan of plant at capacity.)
¯ May 2005: City Engineer Joe Tucker begins determining design criteria based on master facilities plan.
¯ March 7, 2006: Letter from the Ohio EPA recognizing plans between county and city to expand plant and integrate Devola, Oak Grove and Reno. “Ohio EPA supports the regional approach to wastewater treatment that the City and County are working on with the upgrade of the treatment plant.”
¯ Aug. 3, 2006: Authorization by council for administration to sign Memorandum of Understanding with county.
¯ March, 20, 2007: Letter to Mayor Michael Mullen from county commissioners John Grimes and Sam Cook supporting developmental planning and a “multi-jurisdictional focus.”
¯ Oct. 30,2007: County Commissioners adopted resolution to enter into Memorandum of Understanding with city.
¯ Oct. 20, 2007: County Commissioners Grimes and Larry Steinel sign memorandum.
¯ Dec. 28, 2007: Notice for regional sewer meeting between Washington County Commissioners, Marietta Township Trustees, Muskingum Township Trustees, Warren Township Trustees, Washington County Engineer Bob Badger, Washington County Health Department and Marietta Wastewater Superintendent on Jan. 11, 2008.
¯ 2007-2011: Intergovernmental agreement (contract) drafted and edited by city law director, county prosecutor and outside legal council for both parties.
¯ 2009: County employed Stantec Consulting Services Inc., of Columbus, for engineering and design work related to Devola and Oak Grove tie-in as planned by the contract.
¯ Aug. 2010-June 2011: Study by Ohio EPA identifies problems in Devola watershed.
1. Levels of nitrate being discharged from each home septic system.
2. Need for identification of all systems lacking chlorination/dechlorination equipment (majority).
3. Need for calculation of lot sizes to determine if adequate space is available to replace failing septic systems at the Ohio Department of Health standards.
4. Need for determination of need for aerobic and anoxic zones for nitrate treatment and monitoring.
5. Need for determination of cost to upgrade each home septic system.
¯ July 27, 2010: Public meeting attended by residents, city administration and county commissioners on sewer plan.
¯ October 2010: Devola Community Sanitary Sewer Improvements Facilities Planning Report completed by Stantec.
¯ April 7, 2011: City Council authorizes administration to sign final agreement as a contract.
¯ On City Council at the time: Kathy Shively, Jon Grimm, Mike McCauley, Harley Noland, Josh Schlicher, Tom Vukovic and David White (now county commissioner).
¯ Council voted 6-1, Shively against.
¯ May 12, 2011: 40-year contract signed by Marietta Law Director Roland W. Riggs, Washington County Prosecutor James E. Schneider, Marietta Safety-Service Director Al Miller and President of Washington County Commissioners Cora Marshall.
¯ Sept. 14, 2011: Letter of support for project from the Ohio EPA to Mullen signed by Stephen Wells, District Representative from the Division of Surface Water noting, “the upgrades need to be completed ASAP.”
¯ Sept. 15, 2011: Letter of support for project from commissioners to Mullen signed by Marshall, Timothy Irvine and Steven Weber.
¯ Nov. 17, 2011: Marietta begins Phase I of WWTP renovation at total cost of $5,645,106.
¯ March 12, 2012: Devola sewer customers whose wastewater systems were already piped to an old failing sewage plant dumping refuse into the Muskingum River were connected to the Marietta treatment system. Paying the same rate for sewer as city residents, those 319 homes and 46 trailer homes have remained connected to the city’s sewage network.
¯ Sept. 12, 2012: Ohio EPA produced Director’s Final Findings and Orders for Washington County Commissioners concerning Devola septic systems noting, “the Devola area is served by inadequate or failing sewage disposal systems that discharge untreated or partially treated sewage groundwater in the Devola area.”
¯ Dec. 6, 2012: Marietta begins Gilman Avenue lift station upgrade in order to meet timeline of connecting Oak Grove at a total cost of $140,196.
¯ Jan. 2, 2013: Marietta begins Phase II of WWTP renovation at total cost of $6,722,226.
¯ Aug. 7, 2013: Marietta completes Gilman Avenue lift station upgrade.
¯ December 2013: Oak Grove Phase I connection date never fulfilled by county, the project was never initiated.
¯ April 28, 2014: Letter from County Commissioner Ron Feathers to President of Council Josh Schlicher and Mayor Joe Matthews referring to contract as a memorandum of understanding, calling the timelines “too aggressive and unrealistic” and the financing and engineering “not fully developed.”
¯ May 1, 2014: Marietta completes Phase I of WWTP renovation.
¯ Aug. 18, 2014: Ohio EPA receives Washington County Commissioners proposed Devola General Plan of Action 2014 to review as alternative to sewering the entire Devola area.
¯ Sept. 4, 2014: Letter of support signed by Commissioners Ron Feathers, David White and Timothy Irvine to Matthews for the city to apply for Ohio Public Works financial assistance in the WWTP renovation.
¯ Oct. 1, 2014: Wastewater Superintendent Steve Elliott emails Ohio EPA to advise that the commissioners were “in breach of contract and behind the schedules set forth” and asked that the Ohio EPA not approve “any requests or actions by the Washington County Commissioners contrary to our legal agreement.”
¯ Oct. 7, 2014: Devola residents meet with Washington County Board of Health and County Commissioners at the Devola Volunteer Department and discuss the sewering of Devola and Ohio EPA’s orders.
¯Dec. 4, 2014: Letter from Ohio EPA Director Craig Butler to Washington County Commissioners denying proposed Devola General Plan of Action 2014. Butler advises development of plan to sewer remainder of Devola, chides commissioners for loss of $1.4 million in low-interest loans and grants, requires sewering of Devola by Jan. 30, 2015 “in order to progress forward and avoid further escalated enforcement.”
¯ Jan. 18, 2015: From this date forth, Ohio EPA and Ohio Attorney General’s office consider the county in violation of Ohio Revised Code 6111 which states: No person shall violate or fail to perform any duty imposed…or violate any order, rule, or term or condition of a permit issued or adopted by the director of environmental protection. That same chapter authorizes a civil penalty of up to $10,000 per day for violations.
¯ Jan. 29, 2015: Letter from Ron Feathers to Craig Butler stating Ohio EPA’s identified problems were outdated and based on a 4-year-old study from August 2010 stating “The board of commissioners (is) perplexed by your comments concerning the Memorandum of Understanding with (Marietta) as to the bearing this should have on a decision to mandate a $6 million project on citizens not located inside (Marietta’s) limits of authority.”
¯ May 18, 2015: Ohio EPA staff meet with commissioners to offer a modification of the 2012 orders, identifying 62 residences on Lawton Road, nearest wellfield as top priority and agreeing to review septic systems and reassess ground water.
¯ Aug. 4, 2015: Ohio EPA Division of Surface Water mails revised orders to Washington County Commissioners based upon a new “phased approach concept.
¯ Aug. 19, 2015: Marietta City Council and Administration meet with Washington County Commissioners, with both the city law director and county prosecutor present at Lookout Park Recreation Center.
¯ Also in attendance were 40 Devola and Marietta residents.
¯ Commissioners and city administration recognized that the original time line had not been met nor had funding options for the county’s construction of wastewater collection systems been pursued.
¯ Commissioners White and Feathers also informed city administration that no permits to install or right of way easements had been obtained by the county to begin any work in Devola or Oak Grove as outlined in the contract.
¯ December 2015: Devola Phase II sewering project never initiated.
¯ Jan. 14, 2016: Washington County Health Commissioner pens letter against the sewering of Devola saying, “We suspect that sewering all the little communities along the river would contribute very little to the reduction in the nitrated levels of the river.”
¯ March 25, 2016: Ohio EPA Director Craig Butler pens letter to Washington County Health Board President Richard Daniell saying the orders to sewer Devola still stand. Butler cites Ohio Revised Code 6111 as grounds for authority noting that “each day of violation is a separate offense.”
¯ Butler writes that a permit to install, approved by the Ohio EPA for Washington County in January 2013 and extended until July 2015, “…was never acted upon, and no progress has been made toward addressing the nitrate and E. coli pollutants found to be discharging to waters of the state in Devola.”
¯ Oct. 18, 2016: Marietta City Council authorizes the hiring of a specialized law firm in governmental negotiation and litigation to represent the city in mediation and potential litigation against the county concerning the breach of contract.
¯ December 2016: Oak Grove Phase II sewering project never realized, never initiated.
¯ Feb. 22, 2017: Ohio EPA provides county with Modified Director’s Final Findings and Orders continuing to require the sewering of Devola.
¯ March 23, 2017: Assistant Prosecutor Nicole Coil, representing the county commissioners, pens a letter in response to Ohio EPA asking for further clarification and that the Ohio EPA “reconsider its decision to come to Washington County… to explain and discuss these issues with the residents of this community prior to enforcing.”
¯ April 2017: Ohio EPA refers the Washington County violation of orders to sewer Devola to the Ohio Attorney General’s office.
¯ July 19, 2017: Marietta hosts an open house at Marietta College to discuss the design of the Wastewater Treatment Plant renovations. At this stage the plant is in the midst of Phase III of renovations. Final completion is projected for July 2019.
¯ Aug. 11, 2017: Bids advertised for final scope of Phase III renovations to the city’s wastewater treatment plant.
¯ Oct. 10, 2017: A mediation meeting takes place between commissioners and Marietta representatives proves unfruitful.
¯ Oct. 24, 2017: County commissioners meet with the Ohio Attorney General’s Office on orders to sewer Devola.
¯ Nov. 22, 2017: Coil pens a letter to the Ohio Attorney General’s Office requesting settlement discussions on sewering Devola.
¯ Dec. 21, 2017: Marietta sues County Commissioners for breach of May 12, 2011 contract, also asks Washington County Common Pleas Court to compel the county health board to protect health instead of politics.
¯ Jan. 8, 2018: Ohio Attorney General’s Office responds concerning the following:
¯ The science has not changed.
¯ Legal authority.
¯ Unreasonable delay.
¯ Effects of litigation and final offer.
Sources: Ohio Attorney General’s Office, Ohio Environmental Protection Agency, Washington County Health Commissioner, Washington County Commissioners, Washington County Prosecutor’s Office, Washington County Engineering Department, Marietta City Council, Marietta Law Director, Marietta Engineering Department, Marietta Wastewater Department, Times research.
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