Washington Court House is in contempt of court for failure to pay fines to the Ohio EPA stemming from sewage overflows into Paint Creek since 2007, the 12th District Court of Appeals ruled.

The court recently overturned part of a ruling from the Fayette County Common Pleas Court that said the city of 14,000 was not in contempt for failure to live up to the terms of a consent decree it signed with the Ohio EPA in 2007. The EPA filed suit against the city in 2006 to address continual issues of raw sewage overflows that happened mostly when rain storm water emptied into the sewer system sending sewage into streets, basements and the creek.

On behalf of the Ohio EPA, Attorney General Mike DeWine’s office pursued the contempt charge after the city failed to meet the terms of a “System Evaluation and Capacity Assurance Plan” and pay all fines for discharges into the creek in violation of a National Pollutant Discharge Elimination System Permit. According to the court, the citizens of Washington Court House already paid the sixth highest sewer rates in Ohio and with a declining economy and decrease in state funding, it had trouble keeping its sewer system in compliance with federal and state pollution laws.

The city entered into a consent decree with the Ohio EPA in 2007 with the commitment that it would develop a plan by 2008 to assure the system could get up to code, and that it would finish the projects to meet the permit limits by 2011. While the city submitted its plan by the 2008 deadline, it indicated it would be impossible to meet the 2011 deadline and instead would be in compliance by 2028. In addition, the city was filing monthly reports with the EPA and operating under a self-reporting system that counted the numerous times it exceeded it permit discharge limits.

The city paid $58,000 fines stemming from violations from 2007 to 2010, but did not pay for 2011 and 2012. The trial court ruled the city was not in contempt for its inability to meet the plan’s goals for fixing the system, but did rule the city should pay its 2012 fines.

Writing for the appeals court Judge Robin Piper said evidence presented by the city and EPA representatives working with the city to get the sewer system into compliance acknowledged it would be difficult to raise the funds and construct the projects by the 2011 deadline. “However, the record is patently clear that achieving all the goals, and thus adherence to the deadline set forth within the trial court’s adoption of the consent order, was impossible,” he wrote.

As to the fines, the court noted the city stopped paying when the EPA filed the contempt of court order. But during that period city officials knew it was discharging sewage into the creek. “The city knew of its burden to pay the stipulated penalties and did not do so. By signing the consent order, the city expressly agreed to pay penalties should it fail to comply with the consent order regarding effluent levels and incidents of bypass or overflow” Piper wrote. He directed the trial court to hold the city in contempt and determine the amount of unpaid penalties the city owes the state.

Judges Stephen Powell and Michael Powell concurred.

State ex. Rel. Dewine v. Washington C.H., 2014-Ohio-3557
Opinion: http://sc.ohio.gov/rod/docs/pdf/12/2014/2014-ohio-3557.pdf
Civil Appeal From: Fayette County Court of Common Pleas
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: August 18, 2014

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