Guest column: Researches EPA sewer order, says more work needed

Last month, Oak Ridgers were hit with a water/sewer rate increase for the second time in nine months to pay for $15 million worth of debt that you were told (incorrectly) was issued to cover a U.S. Environmental Protection Agency mandate. On Monday night, City Council is preparing to approve another $18 million in debt for the same cause, which will result in subsequent rate increases.

A statement I received this weekend from one resident sums up the frustrations that so many of you have been sharing with me: “Utility rates (water, sewer, electrical, trash pickup, etc.) keep going up; the city and county property ‘double’ taxation is simply too much. It so happens that our group of friends and us discuss the idea of moving to other less costly vicinities nearby more often than before. We would strongly suggest that our city government start budgeting our expenditures with the money we have.”

As both a resident and your elected representative, I share your frustrations. More importantly, I recognize the gravity of the decision I must make on the matter. Not only will my vote permanently impact the finances of every resident and business in Oak Ridge, it will also impact the viability of our city as a whole for decades to come.

Last month, resident Robert Humphries asked council to publicly answer the question, “What should have been done 20-30 years ago by the city to head off the problems we face today?” Some of my fellow council members have expressed a desire to keep “moving forward” and not look back. And while I recognize the limitations placed upon the city by such a firm, federal order, this decision is too important to rush through without greater scrutiny of how we got here.

Since the only information provided to the public so far begins with the mandate and since none of our other city leaders took the time to answer Mr. Humphries’ question, I requested all communications between the city and the EPA beginning with their initial contact in 2008.

The story actually begins in 1994 when the EPA issued a national mandate and began working with cities to reduce sanitary sewer overflows (SSOs), which are essentially overflows of sewage into our streets, streams, etc. Prior to the mandate, and possibly in anticipation of it, the City of Oak Ridge entered into an agreement with Tennessee Department of Environmental and Conservation (TDEC), the state’s supreme authority on environmental issues, to “rehabilitate the City’s sanitary sewer collection system…to reduce the incidents of SSOs and correct them.” The city also contracted with an engineering firm, Lamar Dunn, to study our collection system and provide recommendations on means and methods for conducting the program.

Fourteen years and $24 million later, on Nov. 24, 2008, the city received a request from the EPA for records of SSO occurrences as well as our response plan. The city’s Dec. 15, 2008, response to much of the request was “not available.” We did provide data, just not that which was requested and apparently required by law. The city greatly under-emphasized our overflow issues and deflected responsibility to our agreement with TDEC and Lamar Dunn.

Though there are indications of at least some forewarning from the EPA, no other formal communications occurred between the city and EPA until ten months later when they came to Oak Ridge to conduct an inspection from Oct. 27-28, 2009. Their objective (as previewed in their initial inquiry) was to assess our compliance with the Clean Water Act, evaluate SSOs, and examine our policies and procedures.

The findings clearly indicated massive failures on the city’s part, not the least of which were suggestions that the city had made false claims in its response to the informational inquiry.

On Feb. 1, 2010, the COR responded to the EPA Inspection Report with clarifications of errors, updates, additional documentation, acknowledgements of deficiencies, and some refutations of their findings. No other formal efforts to communicate with the EPA occurred until we received a final warning on April 27, 2010, when the city received a Show Cause Letter from the EPA stating that we were in violation of the Clean Water Act in that we were, by our own design of unpermitted outfalls, “discharging untreated sewage into waters of the U.S. and/or open ditches…endangering the health and welfare of the citizens of Oak Ridge [by] allowing at least 126 SSOs to occur from January 2004 to December 2008, totaling over 3.2 million gallons of untreated sewage.”

The two-page letter went on to say, “EPA requests that representatives of the City be present in this office on or before May 31, 2010, to show cause why EPA should not refer the matter to the U.S. Attorney for initiation of civil or criminal proceedings, or why EPA should not institute administrative proceedings including assessment of penalties…the representatives should be prepared to provide all relevant information, with documentation, pertaining to the violations (including, but not limited to, any financial information which may reflect your ability to pay a penalty.) You have the right to be represented by legal counsel.”

According to the city manager and the director of public works, the city provided no formal response. According to the city attorney, we did not even bother to go their offices as requested. Five months later, the EPA slapped us with severe fines and a mandate to comply via the Sept. 29, 2010, Administrative Order, setting into motion what will likely be the single largest expense of our history.

We screwed up. Big time. Contrary to what some city leaders have said, the city was very much at fault. The EPA gave us ample opportunity to correct a problem that we should have been on top of given the $24 million we’d already spent, the agreement we had with TDEC, and the contract with Lamar Dunn. One has to wonder why we are rewarding them both when they obviously helped us into this mess. (The $18 million loan is from TDEC, and Lamar Dunn, who has had continual contracts with the city for the last 20 years, has yet another contract to assist us with the mandated project.) Be it an issue of competency or negligence, to date, no one has been held accountable. The only people being penalized are the rate payers.

As hard as that pill is to swallow, we are still obligated to comply. But how we do that is still within our control. I make the following suggestions to the public and my fellow council members as a final plea that we do something to champion for the people who elected us rather than selling them out down the path of least resistance.

First, we must direct the city manager to explore funding solutions that do not further burden our rate payers. Prior to the January vote to apply for the $18 million loan, I made a motion that council forego the loan and instead direct the city manager to explore alternative funding solutions. I couldn’t even get a second motion to allow for discussion even though I’d provided a sampling of non-essential expenditures worth more than $4 million. I implore you, my fellow council members, to reconsider. If we can spend $300,000 a year in water and electric revenues on a bogus “economic development fund” why can’t we spend those funds on debt issued for water/sewer projects?

Second, we must make transparency a priority. In spite of all of the information that has been made public, the historical case I made above is one obvious example of our deficiency in this area. Additionally, to date, we still have no total cost estimate. It cost the city $24 million to replace 19 percent of our sewer lines, which suggests that it is plausible that the total end cost will be another $95 million. Lastly, if stacking a special meeting on top of another special meeting and a work session, giving the public three business days’ notice without any mention of the cost within the press release and having no second reading isn’t an attempt to limit public participation, I don’t know what is.

Third, we need to get a second technical opinion on the remediation plan. Why are we relying so heavily on the first and only recommended course of action provided by Lamar Dunn? Again I also ask, why are we rewarding this contractor without question? I note that a brief search of city records indicates that we’ve given this same firm multiple contracts for at least the last 20 years. Why should they be considered a part of the solution rather than the problem? Surely there are other firms that could provide the city with alternative technical solutions. Why not invite other firms to evaluate our current plan and see if they can identify more cost-efficient solutions?

Finally, council needs to take the control of this issue and quit abandoning responsibility to the city manager. He is the one pushing us to make an $18 million decision before determining the impact it will have on our citizens. It will make for a total of $33 million worth of debt accrued in less than 1.5 years. When he asked us to approve the loan application, Mr. Watson indicated that we would not be asked to withdraw the funds all at once; rather, an advantage of this loan was that we could take out what we needed as needed. Now, even though he still has $4 million of unspent funds from the previous loans, he is asking us to take out the entire amount. Furthermore, when it was proven that the public was misled about the reason for the first two rate increases (less than half of that debt went to EPA projects), he refused to make a public correction on the matter. Other than my motion, he has gone unchallenged by this council. Mark Watson was not elected to represent the best interests of our citizens; we were.

We all want what is best for our city. It’s time that we all step up and do the hard work it takes to arrive at the best solutions instead of perpetuating the myths that this is all the EPA’s fault, that they are the boogeyman out to get us, and that we have no choice but to incur more and more debt. It’s time we take responsibility, hold those accountable who need to be, and find a way to pay for this mess with our existing resources instead of punishing our residents and businesses.

Trina Baughn is an Oak Ridge City Council member.

Note: Regarding the May 31, 2010, show cause hearing, Oak Ridge City Attorney Ken Krushenski  said the EPA waived an appearance and allowed a teleconference.

References:

Memo Dated November 20, 2008 from the EPA to the COR Re: Information Request – Section 308 of the Clean Water Act

Memo Dated December 15, 2008 from the COR to the EPA Re: Information Request Relative to NPDES Permit Nos. TN 0024155 and TN0024171

Memo Dated December 8, 2009 from the EPA to the COR Re: Compliance Inspection Report for the Oct 27-28 Inspection NPDES Permit Nos. TN 0024155

Memo Dated February 1, 2010 from the COR to the EPA Re: Compliance Inspection Report for the Oct 27-28 Inspection NPDES Permit Nos. TN 0024155

Memo Dated April 22, 2010 from the EPA to the COR Re: Notice of Opportunity to Show Cause

Memo Dated September 27, 2010 from the EPA to the COR Re: Administrative Order No. CWA-04-2010-4772