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2012-03-26.Order by Judge Sean Cox Appointing Chief Operating Officer (COO) for DWSD

2012-03-26.Order by Judge Sean Cox Appointing Chief Operating Officer (COO) for DWSD

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Published by Peter Cavanaugh
March 26, 2012 - Order by Judge Sean Cox authorizing Chief Operating Officer (COO) position for Detroit Water and Sewerage Dept (DWSD).
March 26, 2012 - Order by Judge Sean Cox authorizing Chief Operating Officer (COO) position for Detroit Water and Sewerage Dept (DWSD).

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Published by: Peter Cavanaugh on Mar 27, 2012
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et al.
,Case No. 77-71100Defendants._____________________________/ 
The United States Environmental Protection Agency initiated this action in 1977 againstthe City of Detroit and the Detroit Water and Sewerage Department (the “DWSD”), allegingviolations of the Clean Water Act, 33 U.S.C. § 1251
et seq
. The violations, which areundisputed, involve the DWSD’s wastewater treatment plant and its National PollutantDischarge Elimination System (“NPDES”) permit.As explained 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, theCity and the DWSD have remained in a recurring cycle wherein the DWSD iscited for serious violations of its NPDES permit, the City and the DWSD agree toa detailed remedial plan aimed at compliance, but the DWSD is unable to followthe plan and is again cited for the same or similar violations. Although this Courthas taken various measures, designed to eliminate the various impediments tocompliance that have been identified by experts and acknowledged by the City,those measures have proven inadequate to achieve sustained compliance.(
at 1).
2:77-cv-71100-SFC Doc # 2456 Filed 03/26/12 Pg 1 of 5 Pg ID 15751
2In September 2009, the DWSD was again unable to maintain compliance with its NPDESpermit and was again cited for violations by the Michigan Department of Environmental Quality(“DEQ”). On July 8, 2011, the City and the DEQ entered into an Administrative Consent Order,aimed at achieving long-term compliance with the DWSD’s NPDES permit and the Clean WaterAct.After the ACO was executed, the City filed a motion asking the Court to find that theDWSD has made substantial progress toward achieving full compliance with its NPDES permitand the Clean Water Act, and dismiss this case.This Court denied that motion in an Opinion & Order issued on September 9, 2010,noting that the DWSD had self-report serious violations of its NPDES permit
entering intothe ACO. Thus, the City had not established that the DWSD has achieved even short-termcompliance with the ACO and the Clean Water Act. In addition, this Court concluded that theextensive record in this case establishes that, unless more fundamental corrective measures aretaken to address the institutional and bureaucratic barriers to compliance, sustained compliancewith the Clean Water Act and the ACO will simply not occur. This Court ordered the Mayor of the City of Detroit (and/or his designee), the City Council President and President Pro Tem, anda current member of the Board of Water Commissioners (to be chosen by the Board) to meet andconfer and, within 60 days, propose a plan that addresses the root causes of non-compliance. (
.at 44).Following this Court’s September 9, 2010 Opinion & Order, the above individuals metand conferred in order to devise and propose a workable solution to remedy the underlying rootcauses of noncompliance (“the Root Cause Committee”). On November 2, 2011, the Root
2:77-cv-71100-SFC Doc # 2456 Filed 03/26/12 Pg 2 of 5 Pg ID 15752
3Cause Committee submitted a written proposed “Plan of Action” to the Special Master in thisaction, which the Special Master then submitted to the Court on that same date. (Docket EntryNo. 2409).On November 4, 2011, this Court adopted the plan proposed by the Root CauseCommittee and ordered the plan to be implemented in order to remedy the recurring violations of the Clean Water Act in this case. (Docket Entry No. 2410). In doing so, the Court ordered that: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 permanent Director of theDWSD has been hired. Once a new Director of the DWSD has been hired, thatnew Director shall assume primary responsibility for implementing this Order andshall join the Root Cause Committee.2.Until the Plan of Action has been fully implemented, or this case has beendismissed, the Root Cause Committee shall meet at least once per month,at which time the individual vested with primary responsibility forimplementing the Plan of Action shall apprise the Root Cause Committeeof the status of the implementation.(
at 8-9).Thereafter, Sue McCormick was hired as Director of the DWSD and began work onJanuary 1, 2012. The Root Cause Committee, which now includes Director McCormick, hasbeen meeting regularly with respect to implementing this Court’s November 4, 2011 Order.Director McCormick, the Root Cause Committee, and the Board of Water Commissioners, havedone outstanding work thus far in implementing this Court’s November 4, 2011 Order.On March 22, 2012, the Root Cause Committee submitted a written request to the SpecialMaster in this action, which was then submitted to the Court:We are asking you, as the Court’s appointed Special Master in Case No.77-71100, to urgently transmit this letter to the Court on our behalf.
2:77-cv-71100-SFC Doc # 2456 Filed 03/26/12 Pg 3 of 5 Pg ID 15753

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Mary Ann McGrail added this note
I have thought that ,with the Board having its own three person staff exclusively advising it,thwe Director had to rely onthe staff of the department for advise,counsel and action. It is incumbent upon the Director to learn who she can an cannot rely on and do so quickly. Perhaps a COO is what she needs to counter the brain power of the Board staff.

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