Sewer Dispute: Opposing sides battle in court

Though no dates have been set on either lawsuit against the Washington County Commissioners concerning the Devola sewer fight, there have been several recent developments.

On Thursday the same judge was appointed to preside over the Ohio Attorney General’s case against the county as already appointed in the Marietta City case against the county.

That appointment was retired Perry County judge Linton D. Lewis.

All proceedings will continue in Washington County Common Pleas Court, first with case management conferences after court dates are scheduled with the court’s assignment commissioner.

Prior to the special judge appointments, the cases had been before both local Common Pleas Judges Randall Burnworth (state case) and Mark Kerenyi (city case).

Presumably, since Lewis is not a resident of Washington County, he could not be disputed by any of the parties as having a biased opinion on the outcome of either case. Perry County sits southeast of Columbus, west of McConnelsville.

Though the two lawsuits differ, they are related in potential outcomes, as the same area (Devola) is the key location in both cases.

The city filed its lawsuit in December, claiming the county was in breach of the 40-year contract to sewer both Devola and Oak Grove by the close of 2016.

The state filed its lawsuit on behalf of the Ohio Environmental Protection Agency in March, claiming the county was in breach of orders to sewer Devola.

Attorneys for the city, county and state have declined to comment on the cases now that they are filed in court.

Since those filings, the commissioners’ attorney has filed multiple motions and responses in both cases, admitting to the authority of the Ohio EPA to regulate and order sewering but denying any breach of orders or contracts.

For a side-by-side comparison of the state and county claims and correlating timeline notes, see the attached PDFState Sewer Lawsuit/County Response.

Highlights in city case

Washington County Assistant Prosecutor Nicole Coil and the Washington County Board of Health (also named in the city lawsuit for failing to uphold its charge to protect the health of county citizens) have filed multiple responses and motions in the city case since the original filing in December.

• Coil moved to dismiss the case by both a motion for summary judgment and a motion to dismiss filed January 23. In the filings, the argument is made that the city’s outside legal counsel which filed the complaint has no authority to file on behalf of the city against the county and that the city is in violation of Sunshine Laws.

• Coil also filed on behalf of the Washington County Health Board a motion to dismiss and another motion for summary judgment, both on Jan. 25. In the filings, the argument is made that the health board did not sign the contract with the city to sewer Devola and thus “is not bound by its terms. This matter is completely separate from the complaint by the City of Marietta against the (commissioners) and these actions should have been filed separately.”

The city’s special attorney, Matthew Dooley, hired by authorization of Marietta City Council on Oct. 20, 2016, filed responses to the four motions at the beginning of February.

• In the Feb. 2 filings, Dooley states that the hiring of special counsel is within the rights of home rule authority. He also states in response to the motion to dismiss based on the merit of the case that the county’s affirmative defense must be proved at trial.

• In the Feb. 5 filings responding to Coil’s motions on behalf of the county health board, Dooley states that the city has standing to expect the board to follow its statutory obligations to protect the health of county residents and seeks relief by the court to enforce these obligations.

On Feb. 6 the Washington County Common Pleas Assignment Commissioner received a termination code to transfer the case to another judge, from Kerenyi’s court.

Replies were also filed to Dooley’s opposition to the motions for dismissal and for summary judgment on Feb. 9 and Feb. 12.

• The county denies factual allegations in the city’s case, stating the 40-year contract signed by previous commissioners in 2011 was never in effect because the U.S. Department of Agriculture loan was never obtained to pay for the sewering of Devola.

• The county denies the city’s assertion of lost revenues, from lack of flow from the homes supposed to be online between December 2013 and December 2016.

On Feb. 12 Lewis was assigned by the Ohio Supreme Court to preside over the case.

Highlights in state case

Coil also filed a response to the state’s suit on March 29 on behalf of the Washington County Commissioners.

Included in that response:

• The county said the state cannot prove septic, dry well or leach field waste systems are failing because they have not done on-site tests at the homes.

• The county states the Washington County Health Commission has documents proving all systems in Devola are in compliance.

• The county denies the conclusions of two separate studies by the Ohio EPA which state groundwater E. Coli and nitrate contamination are caused by failing septic, dry well or leach field waste systems in Devola.

• Though the county admits that previous commissioners did apply to the state for a permit to install a sewer system in Devola in November 2012 (which was approved on in January 2013 and expired in July 2014) the response states that the county “does not have any knowledge or belief as to the reasons for why the prior board of county commissioners… submitted this application before seeing the impact of the reverse osmosis system at the Putnam Community Water Association.”

By the time the previous commissioners submitted this application, the county’s contract with the city had already been signed to sewer Devola and Oak Grove and connect to Marietta’s wastewater collection system.

Presumably the county was honoring the contract with the city on the timeline of sewering the remainder of Devola by the close of 2015, following the first phase to sewer Oak Grove by the close of 2013. Neither project ever came to fruition, nor was the second phase of Oak Grove sewering, contracted to be complete by the close of 2016, ever initiated.

Also of note, in the July 2013 Southern Watershed Action plan published by the Ohio Department of Natural Resources and Friends of the Lower Muskingum River and endorsed by the Washington County Commissioners, the 2011-2012 installation of the reverse osmosis system was “to immediately handle the exceeding levels of Nitrate… to better treat current water withdrawals,” while the connection to the city system was constructed.

On May 2 the potential civil penalty the court could impose on the county for not following the Ohio EPA orders to sewer Devola will reach $12 million.

For an updated timeline on the sewer issue, see The Marietta Times website at bit.ly/SewerTimeline.

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