County vs. the Ohio EPA

Commissioners continue public forum to 10 a.m. Monday

ERIN O’NEILL The Marietta Times Oak Grove resident Alan Bartlett, left, expresses concerns about an ongoing sewer dispute at the regular weekly meeting of the Washington County commissioners. Washington County Assistant Prosecutor Nicole Coil, Washington County Health Commissioner Dick Wittberg, Washington County Prosecutor Kevin Rings, all seated at table, were also in attendance to address the public. A public forum to continue discussions will be held Monday at 10 a.m. The commissioners are required to respond to a letter from the Ohio Attorney General’s office by 5 p.m. Monday.

So many people came out to express their concerns over an ongoing sewer dispute between Washington County and the City of Marietta that a Thursday county commission meeting was recessed until Monday at 10 a.m. when it will be moved to a larger facility at 204 Davis Ave. to accommodate more people.

Before the meeting concluded Thursday the three commissioners took questions from the gallery regarding a decision due to the Ohio Attorney General’s Office by Monday at 5 p.m. The Ohio AG’s office recently 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.

Previous commissioners Cora Marshall, Tim Irvine and Steve Weber entered into an intergovernmental agreement with the City of Marietta, including former city councilman and current county commissioner, David White, in 2011. Some residents at Thursday’s meeting questioned the legality of the initial contract.

“I live on Lawton Road so I’m kind of on the first line of this, if it goes through,” said Devola resident Thomas Alberts. “I believe this was an illegal contract and I know a lot of people out in Devola weren’t aware of this until it started getting in the newspaper. I think (the city) did this for some personal gains, a little pet project.”

The response to the Ohio AG’s office on enforcing the Ohio EPA’s findings is a separate issue from a lawsuit the city of Marietta has filed against the county regarding the 2011 intergovernmental agreement, according to Matt Dooley, the city’s legal counsel. On Dec. 21, 2017, Marietta sued the County Commissioners for breach of contract and also asked Washington County Common Pleas Court to compel the county health board to protect health instead of politics. Dooley told The Marietta Times previously that “the city echoes the content of the Attorney General’s Jan. 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 contract.”

There were roughly 65 people inside the commissioners’ meeting room and another 30 people standing outside. The majority who spoke up were Devola residents and most had the same sentiments.

Phil Washburn, of Masonic Park Road in Devola, thanked the commissioners for fighting for the residents and deferred to Washington County Health Commissioner Dick Wittberg, who was in attendance, to discuss the Ohio EPA’s findings on nitrate levels.

“Know that I consider myself an environmentalist and I think this is completely wrong,” Wittberg said. “I think that we’re heading for more environmental damage sewering than leaving it as it is. If the commission would choose to fight this, I would love to be on the stand, with the charts from (the OEPA’s) own reports to counter their arguments. My fear, though, is that they are not interested in fighting this based on science, they are basing this on their ability to wield a club and force this. There’s still the question of the agreement between the county commission and the City of Marietta and you have my full sympathies. It’s lose-lose.”

Marietta City Councilman Mike McCauley, chairman of the water and sewer committee, explained that the city entered into the agreement because a failing county sewage plant on Ohio 60 was dumping raw sewage into the Muskingum River.

“The EPA came down and said you’re going to have to build another plant and, if you build another plant, you have to sewer Devola. What (the city) did was draft this agreement that would take the sewage from this package plant and force feed it in to the city. We were willing to take that monkey off your back and I’m here to tell you, we’re willing to work with you on the rest of it,” he said. “What we don’t want to do is all this fighting between the council and the commissioners.”

City officials have said Marietta customers will continue to see increases in price until the communities contracted to sewer in do so.

Washington County Prosecutor Kevin Rings and Washington County Assistant Prosecutor Nicole Coil were also in attendance to listen to concerns and provide feedback from a legal standpoint.

“Believe me, we have argued all of these concerns. This set of commissioners has been very diligent, very thoughtful and have done their utmost best to try to continue to work with the EPA,” Coil said. “The problem is, the order is in place, the appeal process has come and gone, and, if we go to court, we’re going to be arguing over whether or not we have complied with the order. Unfortunately, we haven’t complied.”

Coil said that some favorable terms have come through litigation and offered that the commissioners have 62,000 residents of Washington County to consider.

“We have seven more years for the sewering to take place and, since we haven’t complied since 2015, we could potentially be fined $10,000 per day, which is almost $11 million. They said if we comply now, that’s all off the table. So we get the better timeline and the potential for all those penalties to be removed,” she said.

Rings added, “I think someone made an analogy that the EPA is like a bully and that’s an apt analogy, but the fact is, five years ago, we gave the bully the stick to hit us with and they’re not about to put it down.”

Based on a suggestion from Marietta resident Kathy Shively, the commissioners agreed to extend the comment period to Monday morning. But Commissioner Ron Feathers made one last statement on the issue.

“Normally we do not share or discuss how we’re going to vote on something like this but, because so many of you are already here and may not be able to come back Monday, I will address the crowd,” he said. “Five years ago I met with the EPA and they told me nothing could be done, the previous commissioners signed the agreement. Because the EPA will not discuss the science, they will not discuss common sense, we only have dramatic threats and a previously signed contract. Some will say I’m grandstanding or I’m taking ownership of this — none of that is true. I am only standing on where the providential hand has brought us this far in history. I stand with our board of health and I stand for the rights of the citizens of Washington County to maintain their own property. I know not what the outcome will be if we do not surrender, but I do know this: the battle will be long and it will be hard. But it’s not just about Devola. It’s about Oak Grove, it’s about Lowell, Reno, Belpre, Beverly…that’s where they’ve got their targets set. I believe in local government. That authority belongs to the board of health and I will stand with them. I will not sign or vote to surrender.”

Also on Thursday:

During the first part of the regular meeting, the commissioners voted to place a five year, 0.55-mill additional tax levy for Children Services on the May 2018 ballot. That would amount to an increase of $0.055 for each one hundred dollars of valuation, to generate $817,093 for the agency, according to the Washington County auditor.

“It’s way beyond time to do this,” said White. “Children Services limped through last year by begging $300,000 from other counties and we can’t count on that for the future.”

At a glance

Dates to remember:

¯ Public forum on Devola sewer, Monday at 10 a.m. at the Emergency Operations Center, 204 Davis Ave.

¯ Council of Governments meeting, Feb. 5 at noon in Caldwell.

¯ Monthly meeting at County Home, Feb. 13, 8:30 a.m.

¯ Courthouse closed Feb. 19 for Presidents’ Day.

¯ Finance Committee, 10 a.m., Feb. 20.