USA, et al v. Det City, et al
Filing
2410
ORDER. Signed by District Judge Sean F. Cox. (Attachments: # 1 Exhibit A - Plan of Action, # 2 Exhibit B - Procurement Policy) (JPur)
UNITED STATES DISTRICT COURT
EASTERN 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.
_____________________________/
ORDER
The United States Environmental Protection Agency (“EPA”) initiated this action in
1977 against the City of Detroit (“the City”) and the Detroit Water and Sewerage Department
(the “DWSD”), alleging violations of the Clean Water Act, 33 U.S.C. § 1251 et seq. (“the Clean
Water Act”). The violations, which are undisputed, involve the DWSD’s wastewater treatment
plant (“WWTP”) and its National Pollutant Discharge Elimination System (“NPDES”) permit.
As set forth in this Court’s September 9, 2010 Opinion & Order (Docket Entry No.
2397):
For the more than 34 years during which this action has been pending, the
City and the DWSD have remained in a recurring cycle wherein the DWSD is
cited for serious violations of its NPDES permit, the City and the DWSD agree to
a detailed remedial plan aimed at compliance, but the DWSD is unable to follow
the plan and is again cited for the same or similar violations. Although this Court
has taken various measures, designed to eliminate the various impediments to
compliance that have been identified by experts and acknowledged by the City,
those measures have proven inadequate to achieve sustained compliance.
(Id. at 1).
In September 2009, the DWSD was again unable to maintain compliance with its NPDES
1
permit and was again cited for violations by the Michigan Department of Environmental Quality
(“DEQ”). In January of 2010, Detroit Mayor Dave Bing appointed a Chief Operating Officer
who assumed the position of acting Director of the DWSD. Thereafter, the City worked with the
DEQ to develop another plan for compliance and worked with Oakland County, Wayne County
and Macomb County to resolve longstanding issues regarding the DWSD.
On July 8, 2011, the City and the DEQ entered into an Administrative Consent Order
(“the ACO”), aimed at achieving long-term compliance with the DWSD’s NPDES permit and
the Clean Water Act. After the ACO was executed, the City filed a motion asking the Court to
order that the requirements set forth in the ACO are substituted for the requirements of the
Second Amended Consent Judgment, find that the DWSD has made substantial progress toward
achieving full compliance with its NPDES permit and the Clean Water Act, and dismiss this
case.
As explained in detail in this Court’s September 9, 2010 Opinion & Order, this Court
denied that motion. In doing so, this Court noted that after executing the ACO on July 8, 2011,
the DWSD self-reported serious violations of its NPDES permit to the DEQ. Thus, the City had
not established that the DWSD has achieved even short-term compliance with the ACO and the
Clean Water Act. In addition, this Court concluded that the extensive record in this case
establishes that, unless more fundamental corrective measures are taken to address the
institutional and bureaucratic barriers to compliance, sustained compliance with the Clean Water
Act and the ACO will simply not occur. This Court further explained:
Although the City has had ample opportunity to propose solutions to the
root causes of noncompliance that were identified early on in this case, to date, it
2
has not proposed or implemented a plan that has sufficiently addressed those root
causes.
To be fair, the City has been constrained in the measures it has proposed
or implemented to date because the City is bound by various provisions of the
City’s Charter and ordinances, and by existing contracts, that prevent the City
from making fundamental changes in the identified problem areas. This Court,
however, has broad equitable power to order any relief necessary to achieve
compliance with the Clean Water Act and this Court is not constrained by the
provisions of the City’s Charter or ordinances. Nevertheless, this Court is
mindful that remedies that override state or local law should be narrowly tailored
and that, to the extent possible, local officials should at least have the opportunity
to devise their own solutions to remedy a violation of federal law.
(Id. at 2).
Accordingly, this Court ordered the Mayor of the City of Detroit (and/or his designee),
the City Council President and President Pro Tem, and a current member of the Board of Water
Commissioners (“BOWC”) (to be chosen by the BOWC) to meet and confer and, within 60 days
of the date of this order, propose a plan that addresses the root causes of non-compliance that are
discussed in this Opinion & Order. (Id. at 44). The Court directed that, in making such
recommendations to the Court, these individuals shall not be constrained by any local Charter or
ordinance provisions or by the provisions of any existing contracts. Finally, the Court cautioned
that “[i]f the local officials fail to devise and propose a workable solution to remedy the
underlying causes of the recurrent violations of the Clean Water Act in this case, this Court will
order a more intrusive remedy on its own.” (Id. at 43).
Following this Court’s September 9, 2010 Opinion & Order, the above individuals have
been meeting and conferring in order to devise and propose a workable solution to remedy the
underlying root causes of noncompliance (“the Root Cause Committee”). On November 2,
3
2011, the Root Cause Committee submitted a written proposed “Plan of Action” to the Special
Master in this action, which the Special Master then submitted to the Court on that same date.
(Docket Entry No. 2409).
I.
The Court Adopts The Plan Proposed By The Root Cause Committee.
Having studied the Plan of Action proposed by the Root Cause Committee, the Court
concludes that the Plan of Action adequately addresses the majority of the root causes of noncompliance that are outlined in this Court’s September 9, 2011 Opinion & Order. As such, the
Court ADOPTS the Plan of Action proposed by the Root Cause Committee (Ex. A to this
Order), which includes a DWSD Procurement Policy (Ex. B to this Order), and ORDERS that
the Plan of Action shall be implemented in order to remedy the recurring violations of the Clean
Water Act in this case.
As the Committee noted in the Plan of Action, the changes being ordered do not
restructure the DWSD as a separate entity. The DWSD, and all of the assets of the DWSD,
shall remain a department of the City of Detroit.
II.
The Court Concludes That The Plan Does Not Adequately Address CBA Issues And
Orders Additional Relief Necessary For The DWSD To Achieve Short-Term And
Long-Term Compliance.
DWSD employees are members of 20 different collective bargaining units, each of which
has its own collective bargaining agreement (“CBA”) that expires on June 30, 2012. (See
Docket Entry No. 2409, Ex. C, Appx. 12). The Root Cause Committee reviewed the record in
this case, and consulted with several outside sources, and concluded that “[i]t is evident from the
various historical reports, and current conditions, that certain CBA provisions and work rules
have limited DWSD from maintaining long-term environmental compliance.” (Plan of Action at
4
3). The Root Cause Committee agreed that certain changes to existing CBAs need to occur.
Despite earnest efforts of all members, however, the Committee could not agree on how to
achieve the necessary changes.
Based on the record in this case, the Court concludes that certain CBA provisions and
work rules are impeding the DWSD from achieving and maintaining both short-term and longterm compliance with its NPDES permit and the Clean Water Act. Given that the Committee
was unable to agree on a proposed solution for remedying these impediments to compliance, this
Court shall order its own remedy.
As the Root Cause Committee recognized, this Court may elect from several potential
options in ordering a remedy to these impediments to compliance, including:
(i) the approach provided in State legislation for emergency managers that would
terminate all collective bargaining agreements; (ii) suspension of the duty to
bargain for 5 years as provided in certain State emergency laws; (iii) establishing
a regional authority as a new employer for DWSD employees; (iv) terminating
the workforce so DWSD would start with a blank slate; (v) outsourcing plant
operations so corporate representations or warranties of compliance could be
enforced; and (vi) ordering that negotiations take place to address the various
identified problems.
(Plan of Action at 3). The Court has carefully considered all options and concludes that the least
intrusive means of effectively remedying these impediments to compliance is to: 1) keep all
current CBAs that cover DWSD employees in force, but strike and enjoin those current CBA
provisions or work rules that threaten short-term compliance; and 2) Order that, in the future, the
DWSD shall negotiate and sign its own CBAs that cover only DWSD employees, and prohibit
future DWSD CBAs from containing certain provisions that threaten long-term compliance.
Specifically, the Court hereby ORDERS that:
5
1.
The Director of the DWSD, with the input and advice of union leadership,
shall develop a DWSD employee training program, a DWSD employee
assessment program, and a DWSD apprenticeship training program.
2.
Any City of Detroit Executive Orders imposing furlough days upon City
employees shall not apply to DWSD employees.
3.
The DWSD shall act on behalf of the City of Detroit to have its own
CBAs that cover DWSD employees (“DWSD CBAs”). DWSD CBAs
shall not include employees of any other City of Detroit departments. The
Director of the DWSD shall have final authority to approve CBAs for
employees of the DWSD.
4.
The Court hereby strikes and enjoins any provisions in current CBAs that
allow an employee from outside the DWSD to transfer (“bump”) into the
DWSD based on seniority. Future DWSD CBAs shall adopt a seniority
system for the DWSD that does not provide for transfer rights across City
of Detroit Departments (ie., does not provide for “bumping rights” across
city departments).
5.
DWSD management must be able to explore all available means and
methods to achieve compliance with its NPDES permit and the Clean
Water Act. DWSD CBAs shall not prohibit subcontracting or outsourcing
and the Court hereby strikes and enjoins any provisions in current CBAs
that prohibit the DWSD from subcontracting or outsourcing.
6.
DWSD CBAs shall provide that excused hours from DWSD work for
union activities are limited to attending grievance hearings and union
negotiations, with prior notification to DWSD management. The Court
strikes and enjoins any current CBA provisions to the contrary.
7.
DWSD CBAs shall include a three-year time period pertaining to
discipline actions.
8.
The Director of the DWSD shall perform a review of the current employee
classifications at the DWSD and reduce the number of DWSD employee
classifications to increase workforce flexibility. Future DWSD CBAs
6
shall include those revised employee classifications.
9.
10.
Past practices on operational issues shall not limit operational changes
initiated by management with respect to DWSD CBAs.
11.
The Court strikes and enjoins any provisions in existing CBAs that
prevent DWSD management from assigning overtime work to employees
most capable of performing the necessary work within a classification, at
the discretion of management. DWSD CBAs shall provide that
management has the discretion to assign overtime work to employees
most capable of performing the necessary work within a classification, at
the discretion of management.
12.
Any existing work rules, written or unwritten, or past practices that are
contrary to these changes are hereby terminated.
13.
III.
DWSD CBAs shall provide that promotions in the DWSD shall be at the
discretion of management and based upon skill, knowledge, and ability,
and then taking seniority into account. The Court strikes and enjoins and
current CBA provisions to the contrary.
The Court enjoins the Wayne County Circuit Court and the Michigan
Employment Relations Commission from exercising jurisdiction over
disputes arising from the changes ordered by this Court. The Court also
enjoins the unions from filing any grievances, unfair labor practices, or
arbitration demands over disputes arising from the changes ordered by this
Court.
The Court Orders Further Study Regarding Concepts And Issues That Are Not
Fully Developed At This Time.
In a section of the Plan of Action titled “Additional Considerations” (Plan of Action at 6),
the Root Cause Committee discussed the concepts of: 1) an “Efficient Compliance Payment;”
and 2) a Payment in Lieu of Taxes arrangement. The Plan of Action also notes that the
implementation of the Plan of Action may result in a reduction in chargeback revenues to the
7
City of Detroit from the DWSD that will need to be addressed during the transition period. The
Committee stated that while it “believes these concepts are all important and that some
combination of these concepts is critical to the long-term viability of this Plan, the Committee
was unable to achieve consensus on a recommended path due to the complexity of the concepts
under consideration and the amount of research required to complete this task in the time
available.” (Id.).
The Court ORDERS the Root Cause Committee to continue to meet and confer, and to
gather necessary financial records, in order to make specific recommendations regarding how the
reduction in chargeback issue should be addressed during the transition period. Within 60 days
of this Order (by January 4, 2012), the Root Cause Committee shall submit a written supplement
to the Plan of Action to the Special Master regarding that issue and recommendations regarding
same.
The Court further ORDERS that the Root Cause Committee shall continue to meet and
confer in order to further study the concepts of an “Efficient Compliance Payment” and/or a
Payment in Lieu of Taxes arrangement. Within 90 days of this Order (by February 4, 2012), the
Root Cause Committee may submit a written supplement to the Plan of Action to the Special
Master regarding those concepts and any recommendations regarding same.
IV.
The Court Orders Implementation Of The Adopted Plan Of Action And The
Additional Relief Ordered By This Court.
The Court hereby ORDERS the following with respect to implementation of the Plan of
Action, and the additional relief ordered by this Court:
1.
Implementation of the Plan of Action shall be the responsibility of the
Mayor of the City of Detroit (or his designee) until such time as a
8
permanent Director of the DWSD has been hired. Once a new Director of
the DWSD has been hired, that new Director shall assume primary
responsibility for implementing this Order and shall join the Root Cause
Committee.
2.
Until the Plan of Action has been fully implemented, or this case has been
dismissed, the Root Cause Committee shall meet at least once per month,
at which time the individual vested with primary responsibility for
implementing the Plan of Action shall apprise the Root Cause Committee
of the status of the implementation.
3.
In order to facilitate prompt implementation, until the Plan of Action has
been fully implemented, or this case has been dismissed, the BOWC
member that was chosen by the BOWC to serve on the Root Cause
Committee shall serve as interim Chair of the BOWC.
4.
The BOWC shall amend its by-laws within 60 days of this Order (by
January 4, 2012), to make them consistent with the adopted Plan of Action
and this Order.
5.
Within 6 months from the date of this Order (by May 4, 2012), the
Director of DWSD shall prepare a written Report of Compliance with the
ACO that identifies any current or anticipated barriers to long-term
compliance with the ACO and the Clean Water Act (“the Director’s
Report of Compliance”). The Director of the DWSD shall include within
that report any additional recommendations or changes that are necessary
to achieve long-term compliance.
6.
The Director’s Compliance Report shall be provided to the BOWC, the
Mayor of the City of Detroit, the Detroit City Council, the DEQ, and the
Special Master. The Director’s Compliance Report shall request any
comments, suggestions, or recommendations from the BOWC, the Mayor
of the City of Detroit, the Detroit City Council, and the DEQ within 30
days.
7.
To provide adequate time for review and consideration of the comments,
suggestions, and recommendations made, and to allow an opportunity to
9
make necessary changes, the Director of the DWSD shall submit, to the
Special Master, a final report to the Court on the status of compliance with
the ACO, any remaining barriers to long-term compliance, together with
proposed solutions, within 90 days of submission of the initial Director’s
Report of Compliance.
8.
After receiving the final Director’s Report of Compliance, the Court will
determine whether it shall modify or amend this Order. If the Court
determines that this Order needs to be amended, the amended order will be
issued within 30 days after the Courts receipt of the final Director’s
Report of Compliance.
9.
Thereafter, the DWSD may file a motion seeking to dismiss this case if it
believes there has been substantial compliance with this Order (and any
amendment of this order) and the July 8, 2011 ACO.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: November 4, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record on
November 4, 2011, by electronic and/or ordinary mail.
S/Jennifer Hernandez
Case Manager
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?