September 28, 2008

EPA Asks Judge to Reconsider Findings in Suit



Staff Writer

MILLERSBURG -- Attorneys representing the Ohio Environmental Protection Agency are asking a Holmes County judge to reconsider his findings and place the Holmes County commissioners in contempt for alleged wastewater treatment plant violations.

Assistant attorneys general Gregg Bachmann and Andrea Salimbene filed a motion asking Holmes County Common Pleas Judge Thomas D. White for reconsideration of his July 25 decision following a three- day bench trial in which White ruled against charges of contempt brought by the EPA against the commissioners.

At the trial, the EPA alleged the commissioners, as the operators of five wastewater treatment plants in the county, repeatedly violated the terms of a 1998 consent agreement.

The OAG argues former Holmes County Emergency Management Director Jerry Galbraith's admission he was aware effluent limitations occurred equaled an admission of willful noncompliance. Galbraith, testifying May 12 and 13, admitted the WWTPs, specifically in Berlin and at the county jail, sometimes operated above the effluent limitations for pollutants set in the consent agreement.

It was the commissioner's defense the set limitations were impossible to maintain at all times and a schedule of substantial compliance was maintained over the long term.

The OAG asked White to reconsider his finding the commissioners were not in contempt of paying stipulated penalties presented in the 1998 consent agreement. White ruled on July 25 the OAG failed to provide him with a means to determine what constituted sanctionable violations that would result in stipulated penalties.

The county and EPA entered willfully into the agreement and its terms on Dec. 15, 1998.

Had White found the commissioners in contempt, the county may have been ordered to pay penalties on thousands of days of alleged effluent discharge violations. The EPA contended the violations occurred on 6,665 days, spread over a nine-year period at the five WWTPs.

In addition to the violations at the Berlin and jail WWTPs, the OAG argued in the bench trial violations also occurred at plants at Walnut Creek, Mount Hope and October Hills.

The possible monetary amount of the penalties was not discussed by the OAG.

White's July 25 ruling did not absolve the commissioners, however, ordering them to come up with a plan to prevent further violations and the transfer of the care of the wastewater plants to another agency.

White's decision included his belief "the commissioners have proven that their office is overburdened by the responsibilities of managing their WTTPs." The commissioner's council, attorney Stephen Haughey, did not argue being overburdened as a defense.

The OAG seeks White to reconsider 406 days of effluent violations at the jail WWTP and 313 days at Berlin. If found to be in contempt, the county can be fined for each individual day.

White agreed with the commissioner's defense that while violations did occur, the plants maintained a substantial level of compliance.

White is expected to rule on the motion next week and declined comment due to the pending nature of his decision.

Reporter Nick Sabo can be reached at 330-674-1811 or e-mail [email protected]

Originally published by By NICK SABO Staff Writer.

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