County: No ‘surrender’ on sewers

Commissioners’ 2-1 vote sets stage for court showdown

Washington County Commissioner Rick Walters urges Devola residents gathering around him after a vote Monday to fight the Ohio Environmental Protection Agency and the Ohio Attorney General's Office. JANELLE PATTERSON The Marietta Times

Tears and cheers broke out Monday as a swing vote officially pitted the Washington County Commissioners against the Ohio Environmental Protection Agency and Ohio Attorney General’s Office in a dispute over sewering Devola.

“I believe now is not the time to surrender,” said Commissioner Ron Feathers. “Now is not the time to give up only on blackmail. Let a judge in a court decide that. If it goes to the Supreme Court, so be it.”

The vote elicited yells, whistling and applause following the gathering of more than 100 Devola, Little Hocking, Oak Grove, Barlow and Marietta residents before the commissioners.

The commissioners’ meeting was a continuation of last Thursday’s regular meeting to address a final offer from the Ohio EPA on a sewering timeline for Devola in lieu of $10,000 per day in penalties dating back to Jan. 18, 2015.

The extension of the meeting was to allow for residents who did not get a chance to speak Thursday the opportunity to do so.

JANELLE PATTERSON The Marietta Times Washington County Commissioner David White is comforted by county residents after a 2-1 vote, with White on his own, placed the county against the Ohio Environmental Protection Agency and the Ohio Attorney General in a dispute over sewering Muskingum Township.

More than 15 people took the opportunity to address the commissioners with concerns about the financial strain sewering the Devola community could place on its residents. Some spoke to inconsistencies in Ohio EPA numbers of residences affected and of disagreements with the scientific findings of the agency. Others spoke of the impact nitrates in drinking and groundwater are reported to have on health and of contractual law obligations.

But the meeting was held to decide whether to accept a final negotiated offer from the state agencies or to fight the orders before a judge.

“Now the ball is back in (the OAG) court,” said Assistant Washington County Prosecutor Nicole Coil, who would not speak to how she had advised the commissioners of their legal standing against the state agencies. “I’ll write a letter to inform them of the commissioners’ decision and then it’s their call where or if they file anything.”

Public Information Officer Kate Hanson, with the Ohio Attorney General’s office, said Coil’s letter was received and that the office would be reviewing the commissioners’ decision.

Though the OAG provided a final offer for a timeline to sewer the residences of Lawton Road by 2020 and the rest of Devola by 2025, they required a response confirming that plan by 5 p.m. Monday from the commissioners, indicating that any action against the plan would move the matter to enforcement and additional civil penalties.

JANELLE PATTERSON The Marietta Times More than 100 Washington County residents gather in a special meeting of the Washington County Commissioners to air their concerns over Ohio EPA orders to sewer Devola Monday at the county's Emergency Operations Center.

To date, penalties would be north of $11 million if enforced by a judge for the lack of compliance with a signed order between commissioners and the Ohio Environmental Protection Agency to address nitrates found in the drinking and groundwater in Devola both in 2009, 2010 and 2016.

“But the Ohio Supreme Court loves this stuff, they want to see local control versus state control,” said Feathers. “Since we’ve got the board of health behind us saying there’s no crisis, then I think we’ve got a good case unless they say you’ve got a signed (order to sewer Devola from the OEPA) and that’s it.”

Commissioner David White said to fight against the state agencies was not in the best interests of the county as a whole and explained to those present that his vote to confirm the offer from the OAG was made against his conscience.

“Even if we find ourselves in a temporary state of success, the Attorney General’s Office will undoubtedly file an appeal, they have unlimited resources, we don’t,” he said. “We’d be compelled to spend multiple thousands of dollars and have less chance of winning.”

Calling the Ohio EPA a “bureaucratic monster” and shedding tears during the meeting, White was the only vote in favor of the Ohio EPA and Attorney General’s plan.

“Be certain, we negotiated an end that is going to be least harmful to all of our people,” he said before being interrupted by members of the crowd saying residents who cannot afford the project will lose their homes.

And so the vote came down to President of the Board of Commissioners Rick Walters.

“I hated being the swing vote. If it had been last Thursday, I would have voted to sign the contract because we got the notification and you’ve got 14 days to make a decision,” he explained. “You’ve got a bully telling you they’re going to charge you $11 million if you don’t do what they tell you… I just felt that this was the right thing to do about money but it was not the right thing to do about people.”

Walters said the decision was based on two key moves Sunday from Devola residents.

“I had a resident of Devola come to my house (in Beverly) yesterday and we talked for 45 minutes. He was an elderly man with a property and he wasn’t sure he could afford it. He was afraid he would lose his home,” he explained. “And I’ve got a list here, these are all of the people that signed this petition yesterday. When you get more than 250 signatures in one day that say don’t give up the fight it’s hard for me to think I’m punching the hole in their boat.”

Though the majority of the crowd cheered the final tally and were thanking the commissioners afterward, there were dissenting opinions voiced, before the votes were cast, by residents of Marietta, Barlow and even Devola.

Ingrid Baumann, of Lawton Road in Devola, said when her dry well had failed prior to 2009 she had wanted to sewer her home.

“When it had failed we wanted to tie in but we weren’t allowed because the sewer was at capacity,” she said. “What happens if it fails again?.”

Board of Health President Richard Taylor said variances to remedy failed septic systems are considered on a case by case basis.

“All I know is I live in the county and own property in Marietta. I am going to pay for this in legal fees, in property taxes, my homes in Marietta I’m paying more in sewer because of the cost of Devola not sewering, those costs not being shared by as many people as the (Marietta) plant is being built for,” said Kim McMichael, of Barlow. “We abide by state rules all the time that we disagree with because we live in a democracy. What happens if I speed? I get a ticket. That’s the law, I obey the law. Same thing with environmental regulations.”

McMichael asked Walters after the meeting how Marietta’s wastewater plant renovation would be affected by the vote. Though the renovation is not directly tied to the dispute the commissioners have with the county it’s related as it was contracted as a solution to failing septic systems in Devola and Oak Grove.

Though Walters said he did not know the answer, City Engineer Joe Tucker later said some design plans could change.

“We designed the whole plant for Devola and Oak Grove to tie in per our contract (with the county),” he stated.

“In each phase, things were sized with that additional flow in the plan. We’re in the final shop drawings for the last scope of the project, the final clarifiers, so I would have to stop, redesign, redraw and redeploy all for negligible savings in equipment that’s supposed to be in the ground by July 8.”

Tucker did emphasize his disappointment with the commissioners’ vote but reiterated that the commissioners’ dispute with the Ohio EPA and OAG are a separate issue from the city’s lawsuit against the county commissioners and health board. The suit is on the grounds of a broken contract to sewer both Devola and Oak Grove and tie those flows into the city’s plant by the close of 2016.

Following the meeting, Walters charged those still in the room with being ready to support the commissioners in the predicted fights in the courts.

“You don’t need the $300,000 lawyer,” he yelled. “You needed the $5,000 lawyer to put the suit on us to stop this. Now we’re going to fight, and we’re going to need all of you to support us.”

At a glance

≤ The Washington County Commissioners now face a possible $11 million-plus civil penalty for refusing a final offer to agree to amended orders from the Ohio Environmental Protection Agency to sewer Devola.

≤ The commissioners voted 2-1 Monday to fight the Ohio EPA and the Ohio Attorney General’s office on the orders.

≤ The commissioners also face a lawsuit and a possible $16 million in damages ruling from Marietta city lawsuit concerning their signed contract to sewer both Devola and Oak Grove by the conclusion of 2016.