USA v. Bd Of Comm Ham Co, et al
Filing
509
OPINION AND ORDER re 501 Report of Ombudsman and 507 City of Cincinnati's Supplement. Pursuant to the hearing held on this matter on 5/24/2011, the Court CLARIFIES that under the Consent Decree in this case, the Magistrate Judge has jurisdiction to hear any matter in dispute between homeowners and the Metropolitan Sewer District arising from the Sewer Back Up program. Signed by Judge S Arthur Spiegel on 5/25/2011. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA, et
al.,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS
OF HAMILTON COUNTY, OHIO, et
al.,
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NO. 1:02-CV-00107
OPINION AND ORDER
Defendants.
This matter is before the Court on the Ombudsman’s Report
(doc. 501), and the City of Cincinnati’s Supplement (doc. 507),
thereto.
The Court held a hearing on this matter on May 24, 2011.
For the reasons indicated herein, the Court CLARIFIES that under
the
Consent
Decree
in
this
case,
the
Magistrate
Judge
has
jurisdiction to hear any matter in dispute between homeowners and
the Metropolitan Sewer District arising from the Sewer Back Up
program.
At the May 24, 2011 hearing the Ombudsman, the Legal Aid
Sociey of Southwest Ohio, LLC, gave a comprehensive report of its
activities since its last report, in August 2010.
There is no
dispute that the Sewer Back Up program is effectively addressing
the issue of sewage back ups within the Metropolitan Sewer District
(“MSD”) service area, and that the program continues to adapt and
improve.
The Court is impressed with the efforts and cooperation
of all the parties, and particularly, the work of the Ombudsman in
shepherding homeowner complaints to resolution.
In addition to the report, counsel for the Ombudsman
indicated, as in her Report, that she desired clarification in the
light of the Magistrate Judge’s September 30, 2010 Order (doc.
475).
In such Order the Magistrate Judge made a distinction
between
the
devices.”
award
of
damages
and
the
cost
of
“preventative
It appears to the Court that the Magistrate Judge, in
reading this Court’s February 3, 2006 Order (doc. 154) pertaining
to the review process of denied claims in the Sewer Back Up
program, understood that disputes regarding causation and value of
claims were the only disputes within his jurisdiction. However, in
the same Order, this Court stated, “a homeowner who is dissatisfied
with the City’s disposition of a claim under the [SBU] Program may
request review of the decision by the Magistrate Judge” (doc. 154).
The Court made no distinction regarding what sort of claim a
homeowner could make.
At the hearing, counsel for the City, for Hamilton
County, for the United States, and for Sierra Club also expressed
their views regarding the Magistrate Judge’s jurisdiction with
regard to any disputes between homeowners and MSD about the scope
of preventative devices.
Counsel for the City explained that
homeowners suffering from two sewer back up events are eligible for
the installation of a fail-safe one-way check valve that will not
allow sewage from the system to enter into a homeowner’s sewer
line.
They can also be eligible for a “grinder pump” that ensures
the homeowner’s system can evacuate into the MSD system, even if
the MSD system is at full capacity and is exerting pressure against
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the check valve.
Such a pump requires electricity to function.
With a loss of electricity, the pump could not evacuate the
homeowner’s system, but the one-way check valve would still prevent
sewage from a back up into the home.
The United States expressed opposition to the Magistrate
Judge’s review of scope of remedies, arguing that should the scope
of remedies ultimately be enlarged, resources would be diverted
from those needed to address the other Consent Decree projects. In
contrast, the Sierra Club expressed support for such review.
Having reviewed this matter, the Court finds the position
of the Ombudsman and the Sierra Club well-taken.
The Court does
not envision a flood of litigation resulting from clarification
that scope of remedy issues are within the Magistrate Judge’s ken.
Nor does the Court find such understanding inconsistent with its
previous Order or with the Consent Decree.
In fact the Consent
Decree envisioned an array of potential remedies, including the
fail-safe
check
appropriate
valves,
technology.
the
grinder
All
of
pumps,
these
and
remedies
any
other
constitue
“preventative” devices, and should there be any issue with their
failure, that the parties cannot resolve, the Magistrate Judge can
do so.
Of course, as stated at the hearing, the heavy burden would
be
the
on
homeowner
to
proffer
technical
evidence
that
any
challenged MSD remedy is inadequate, a proposition that the Court
finds unlikely.
Finally, although the Court in no way sits in appeal of
Magistrate Judge Hogan’s September 20, 2010 opinion, the Court
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finds it appropriate to express its view that he reached the
correct result.
Although Magistrate Judge Hogan may have viewed
the issue of preventative devices as outside the Consent Decree,
and therefore outside of his jurisdiction, he correctly found the
homeowner was not entitled to a back-up generator.
The
collaboration
program.
Court
and
again
success
congratulates
in
the
implementing
parties
the
Sewer
on
their
Back
Up
The Court further appreciates the assistance of counsel
in enlightening it at the May 24, 2011 hearing.
Accordingly, the Court CLARIFIES that under the Consent
Decree in this case, the Magistrate Judge has jurisdiction to hear
any matter in dispute between homeowners and the Metropolitan Sewer
District arising from the Sewer Back Up program.
SO ORDERED.
Dated: May 25, 2011
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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