2012-12-03.joint statement of epa and mdeq re oct 12, 2012 notice

7/30/2019 2012-12-03.Joint Statement of EPA and MDEQ Re Oct 12, 2012 Notice

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

United States of America, ))

Plaintiff, ))

v. ) Honorable Sean F. Cox)

City of Detroit, et al. ) Case No. 77-71100)

Defendants. )____________________________________)

NOTICE OF JOINT STATEMENT OF THE UNITED STATES AND MICHIGAN

FOLLOWING OCTOBER 12, 2012 NOTICE

The United States of America, on behalf of the United States Environmental Protection

Agency (EPA), and the State of Michigan, on behalf of the Michigan Department of

Environmental Quality (MDEQ), hereby file this Joint Statement as a follow-up to the United

States October 12, 2012 Notice.

EPA and MDEQ have taken the opportunity to review presentations made by

management consulting firm EMA to the Detroit Sewerage and Water Department (DWSD).

These presentations were dated August 2012 and September 6, 2012 (EMAs Presentations or

EMAs Proposal).

In general, EMA made recommendations concerning a potential reorganization of DWSD

and the deployment, use, and optimization of automation, technology, and systems control for

the purpose of achieving greater efficiency and cost savings. EMA is not an environmental

consultant and its Presentations do not deal directly with EPAs and MDEQs areas of

jurisdiction and expertise. Nevertheless, because EMAs Proposal was raised in DWSDs

2:77-cv-71100-SFC Doc # 2509 Filed 12/03/12 Pg 1 of 90 Pg ID 16702


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Motion for an Interim Order, EPA and MDEQ reviewed EMAs Proposal to assess whether any

aspects of it appear likely to affect DWSDs compliance with its NPDES permit and the Clean

Water Act (CWA), 33 U.S.C. 1251 et seq.

Since this Courts October 12, 2012 status conference, representatives from DWSD and

EMA presented and explained EMAs Proposal to EPA and MDEQ. EPA and MDEQ also

reviewed available public documentation concerning the Proposal. In addition, from

November 6, 2012, through November 9, 2012, EPA, with the participation and assistance of

MDEQ, conducted a Compliance Evaluation Inspection at the DWSD wastewater treatment

plant.

At this time, EPA and MDEQ take no position on the appropriateness of EMAs

Proposal. However, EPA and MDEQ have identified one aspect of the Proposal that, if

implemented as written, could have a negative impact on CWA compliance: the significant

projected reductions in staffing levels within DWSDs wastewater operations group

(WWOG).1 DWSD informs EPA and MDEQ that the WWOG currently has over 600

employees. By contrast, after implementation of all recommended actions, EMAs Proposal

projects fewer than 150 WWOG employees.2

In discussions with EPA and MDEQ, DWSD managers indicated that EMAs projected

staffing levels have not been adopted by DWSD and are onlyprojections, not a plan. DWSD

1 EPA and MDEQ do not, at this time, take a position or comment upon other recommendations

in EMAs Proposal, including, for example, job classification redesign, computerizedmaintenance management systems improvements, automation and IT support system changes,and control system upgrades.

2 August 2012 EMA PowerPoint Presentation at 16. The August 2012 Presentation lists 68employees under the wastewater manager and 76 employees under the field/central servicesmanager. Some of those 76 field/central services employees will perform duties currentlyundertaken by WWOG employees.



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represented that it intends to move forward with EMAs proposed staffing actions (i.e., job

classification redesign, team training, etc.) in a step-by-step, piloted manner, with time to

evaluate and adjust as necessary. DWSD further represented that no recommended actions

would be implemented that threatened safety or compliance.

Safeguards already in place should help to minimize the risk that reductions in WWOG

staffing levels might undermine DWSDs ability to comply with its NPDES permit and the

CWA:

1. DWSD entered into an Administrative Consent Order (ACO) and a FirstAmended ACO with MDEQ on July 8, 2011, and May 18, 2012, respectively.

The ACO and First Amended ACO are Attachments 1 and 2 to this Notice.

2. Under the ACO, DWSD was required to develop and submit a Staffing Plan thatidentified the minimum number of maintenance and operations staff necessary toproperly operate and maintain the Detroit WWTP and CSO facilities and astrategy for successful succession planning and training to ensure competentstaff. Att. 1 (ACO) 3.6. DWSD submitted that plan at the end of July 2011and MDEQ subsequently approved it. The approved Staffing Plan isAttachment 3 to this Notice.3

3. Under the approved Staffing Plan, the WWOGs minimum staffing level for FY

2011/2012 is 645. Att. 3 (Staffing Plan) at 3. As of October 1, 2012, DWSD wasrequired to staff the WWOG at 90% of the minimum staffing level. Att. 1 (ACO) 3.6.c. The Staffing Plan is an enforceable plan under the ACO. Id. 3.6.a, 4.5.

4. Under the ACO, the WWOGs minimum staffing level can be revised only bymutual agreement between MDEQ and DWSD in writing and incorporated byreference into the ACO. Id. 3.6.f.

3While the Staffing Plan is dated April 1, 2011, DWSD did not submit it to MDEQ until the end

of July 2011 and MDEQ approved it on January 24, 2012. EPA and MDEQ recognize that theapproved Staffing Plan is based, inter alia, on DWSDs 2011 organizational structure and theautomation, technology, and control systems then in place. Changes in these and other areasmay well impact appropriate future minimum staffing levels. DWSD must secure the approvalof MDEQ for any changes in minimum staffing levels.



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At this time, EPA and MDEQ have not identified a basis for seeking relief concerning

DWSDs consideration of EMAs Proposal. EPA and MDEQ will continue to monitor WWOG

staffing levels through the ACO already in place. 4

Because the extent to which specific elements of the Proposal will be implemented

remains to be determined and because EMAs recommendations and DWSDs actions in the

future may change, EPA and MDEQ reserve their right to review future developments to ensure

continuing CWA compliance.

By conducting this review and continuing to monitor the situation, EPA and MDEQ do

not intend to impair DWSDs efforts to undertake appropriate reorganization, automation, and/or

technology and control systems upgrades that DWSD may deem necessary to improve

4 The United States and Michigan are aware that, on November 20, 2012, the Detroit CityCouncil rejected a part of the EMA Proposal that called for a $48 million contract between EMAand DWSD. We also are aware that DWSD recently proceeded with a smaller EMA contractinvolving job classification redesign, training, and implementation. There have been suggestionsthat EPA and/or MDEQ should take a position on the $48 million EMA contract (for example,by approving or disapproving it). While the United States and Michigan reserve the right to takeall actions necessary to ensure compliance with the Clean Water Act and any other applicablefederal or state laws, we are not aware, at this time, of any reason why the United States andMichigan would assert authority to approve or disapprove any contract between DWSD andEMA.



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efficiency, control costs, and address DWSDs need for long-term strategic and financial

planning.

Respectfully Submitted,

FOR THE UNITED STATES OF AMERICA FOR THE STATE OF MICHIGAN

IGNACIA S. MORENO PAMELA J. STEVENSONAssistant Attorney General Assistant Attorney GeneralEnvironment and Natural Resources Environment, Natural Resources

Division and Agriculture Division

s/ Annette M. Lang s/ with consent of Pamela J. StevensonANNETTE M. LANG PAMELA J. STEVENSONTrial Attorney Assistant Attorney GeneralEnvironmental Enforcement Section Environment, Natural ResourcesEnvironment and Natural Resources Division and Agriculture DivisionP.O. Box 7611 6

thFloor Williams Building

Washington, D.C. 20044-7611 525 West Ottawa St.(202) 514-4213 P.O. Box 30755(202) 616-6584 (fax) Lansing, Michigan [email protected] (517) 373-7540

BARBARA L. MCQUADEUnited States AttorneyEastern District of Michigan

By:

s/ with consent of Peter A. CaplanPETER A. CAPLANAssistant United States Attorney

Eastern District of Michigan211 W. Fort St., Suite 2001

Detroit, MI 48226(313) [email protected]

mailto:[email protected]:[email protected]:[email protected]


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OF COUNSEL:

Nicole CantelloAttorney-AdvisorU.S. Environmental Protection Agency

Region 5 (C-14J)77 W. Jackson Blvd.Chicago, IL 60604



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CERTIFICATE OF SERVICE

I hereby certify that on December 3, 2012, I electronically filed the foregoing paper withthe Clerk of the Court using the ECF system which will send notification of such filing tocounsel of record and that I caused copies of same to be mailed via U.S. mail as follows:

Joseph W. Colaianne John H. FildewOakland County Corporation Counsel Fildew Hinks1200 N. Telegraph Rd. 26622 Woodward Ave.Suite 419 Bldg. 14E Suite 225Pontiac, MI 48341-0419 Royal Oak, MI 48067

Robert J. Hribar Charles E. Lowe16931 19 Mile Rd. Lowe, LewandowskiMount Clemens, MI 48044 905 W. Ann Arbor Trail

Plymouth, MI 48170

s/ Annette M. LangAnnette M. Lang



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2012-12-03.joint statement of epa and mdeq re oct 12, 2012 notice

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