Federal Judge rules on MSD and Hamilton County motions, Cincinnati Enquirer is silent

This is more than WCPO getting the scoop on the local paper, the silence of The Enquirer in not running this story is a public detriment.

Two days ago...and still no story from The Enquirer...the federal judge ruled on the motions to the court between Hamilton County and the Cincinnati Metropolitan Sewer District (MSD). This is important to Cincinnati due to the costs to rate payers, the damages caused by overflows, the damages caused by backups, and the health issues the sewer system presents. Communities in Hamilton County have been waiting on sewer repairs for many years (decades in some instances). Repairs and upgrades are needed at the outflows to the Ohio River, the treatment plants need improvements, increased capacity is required at several pumping stations, equipment is in need odor scrubbing, and the sewer lines need replacement/repair/keeping rainwater out. Hamilton County and MSD have been in court over who is in charge and they both had their own plans on how to move forward. The judge hopefully resolved some of that. The judge said that Hamilton County gets to submit their plan to the EPA. This judgement came out Tuesday. Odd the newspaper has not covered this story but WCPO did. The paper did cover the MSD rescue of a Guinea Pig which was heartwarming. Summary of the ruling:

- Hamilton County gets to submit their plan to the EPA.
- The MSD is not supposed to withhold information from the County.
- The Hamilton County Monitors are supposed to be less [obstinate] with the MSD.
- If the MSD and County do not play nice the judge promises to be "draconian" in next steps.

This is a big deal, the plans from Hamilton County and the MSD did not match. The planning from Hamilton County was better communicated to residents with greater transparency. The plan from Hamilton County appears to better meet the needs of all residents in Hamilton County.
What has taken months in court had three out of four motions dismissed. The County had two of three motions dismissed. The MSD had their motion thrown out as "moot". More than two days after the court released the rulings on the motions there is no article to inform the public in The Enquirer.

A flashy creek story: The MSD manipulates a safety event into a PR win

It is no secret that the Cincinnati Metropolitan Sewer District (MSD) has been opposed to a plan to patch a specific segment of sewer pipe on the West Side of Cincinnati. What is a surprise is that the MSD would misrepresent a safety event to support their claims that the project was not feasible and score a Public Relations coup using a partly nonfactual narrative. The misrepresentation comes from leaving out major details of the safety event.

Hurricane Barry floods Muddy Creek

The misrepresentation begins with this image used to support the MSD assertion that the Muddy Creek in Cincinnati is 'flashy' too unpredictable and too dangerous for equipment to work on projects. Yes, we have a 'muddy creek' named the Muddy Creek in Cincinnati.

It does look like a pretty dangerous situation but that is as far as the MSD report and MSD presentation on this topic are factual. 

The rain event that endangered the equipment was predicable and expected with four days notice! The date of event and the equipment in the creek was July 15th 2019. The same date the remnants of Hurricane Barry came through Cincinnati. The weather event had been forecast in the news for four days. A weather alert came out that day.

NWS July 15 2019

The equipment in the creek image is also in question. The MSD image on official record has been altered and the metadata removed (history attached to an image or file). As reported, what is missing from the image is the chain holding the equipment to a tree. The contractor appears to have anticipated the rain event. The equipment should have been removed in advance of the weather. 

In an Ohio Records Request to the MSD the MSD did not respond on a request to provide any safety report associated with the removal of the equipment from the creek. This was a dangerous situation and a safety report would have been expected.

The MSD Director repeated this narrative to the Major Projects & Smart Government Committee meeting on May 12th 2020:

Per the MSD Director the flooding happened in minutes, that may well be, but it was with four days notice.

The MSD and Hamilton County will need to speak to the question if the creek is actually dangerous but it is clear the equipment image and narrative were inappropriate choices by the MSD. In the end the memo did score points for the MSD in their attempt to discredit the position of Hamilton County oversight but it was done through a misrepresentation of facts. There appear to be more items not-quite-right in the memo and presentation. It is wasteful that Hamilton County staff are put in the position of having to fact check everything the MSD dumps on them.

Another question that does beg answering. If the creek was too dangerous for equipment then why did the MSD have a project that put equipment in the creek in the first place? The project that was in progress had awareness of the same creek factors and appears to have been a non-critical task.

The Google Drive share for the following documents obtained through Ohio Open Records Law and Freedom Of Information Act requests:

UMCI March 3 Council Committee Presentation
MSD Comments to Proposed Plan to Attempt Patching of Failed Upper Muddy February 26 2020

The 2019 Failure of the Northside Detention Basin: Where is the Public Investigation of Possible MSD Negligence?

The Cincinnati Metropolitan Sewer District (MSD) harmed the residents of the Northside community with a catastrophic dam failure.

Why hasn't there been a public investigation of this failure?

This is one multiple "do-overs" for a city agency that has an annual budget of $217.7 million dollars. At a time when COVID-19 has ravaged the Cincinnati city budget causing unprecedented layoffs of city staff we can ill afford additional failures in leadership, design, and oversight at the MSD. The number and severity of problems with the Northside project go beyond just the primarily design issues this conversation addresses and raises the further question, was the MSD negligent?

The weekend of June 15th, 2019 was a bad weekend for the residents of the Northside neighborhood when a rainwater detention basin failed due to a heavy storm. A basin is collection ditch and earth dam like structure. Dramatic flooding resulted from the out flowing waters that damaged the insides several residences and caused above ground property damage as well. 

The tragic event and its immediate outcomes were reported in the Cincinnati Enquirer. The pictures and personal stories explain the consequences of the failure.The MSD response regarding residents demanding compensation from the news article:

"[MSD Director] Christy told The Enquirer in an email that the sewer district has a team that investigates sewer backups. The flooding in Northside was caused by rainwater runoff, not sewer backups, and wasn't covered by this program, Christy said."

The question needs to be raised does the statement of the Director rejecting coverage apply if the MSD caused the rain water due to neglect or maintenance failures? MSD will have you believe it was rain water only but once the flood is in the basement the sewage will perk up into the basement. It was in the financial interests of the MSD to say the event was just rainwater to prevent a hit on the city budget. Did this cause a conflict of interests when the MSD makes determinations on itself? 

While this basin failure was not primarily a 'sewer backup' it was a dam project to prevent sewer overflows with the MSD designing and contracting the project. This project overview is on display at Project Groundwater:

Proposed Basins as described at Project Groundwork

The three key points from the Project Groundwork overview written by the MSD:

1. The Challenge in Northside When it rains, stormwater enters combined sewers in the vicinity of Kirby and Virginia avenues. If the sewers become too full, sewer overflows can occur at CSO 125... About 188 million gallons of raw sewage and stormwater overflow annually from this location. 
2. The Solution in Northside MSD is designing two stormwater detention basins — North Basin and Martha Basin — off Kirby Avenue that will keep stormwater out of the combined sewer system...
3. Each basin is designed to hold stormwater from a 100-year storm.

That the MSD is responsible for the designs of the system is also found in the contract for Project ID 10240018 CSO 125 Stream Separation:

"Modeling or other analysis to estimate [Combined Sewer Overflow] CSO volumetric control at CSO 125 except showing the results of the completed project by modeling the completed design with the calibrated model to be provided by MSDGC." 

The Metropolitan Sewer District intended to design a system to solve a problem at one of the Combined Sewer Overflows that had been overflowing human waste contaminated rainwater for years at a specific location, Combined Sewer Overflow 125, in the Northside community. 

The details that unfold with the April 2020 after-action engineering report that released ten months after the dam failure presents the project as having many design, construction, and oversight failures:

1. The North Basin does not include a spillway designed to protect the embankment from breach and channel excess flow safely downstream.
2. The design of the North Basin Outlet Structure may provide less capacity to utilize the Combined Sewer than existed before the project. This may have contributed to washout of the embankment and to increased flooding during the June 2019 event.
3. The North Basin embankment was under construction at the time of the June 2019 event, and it is unclear whether the embankment was completed to its full height before the June 2019 event. If the embankment was not at its full height, this could have decreased the flow conveyed by the existing 96 inch combined sewer and increased the flow over the embankment.
4. In addition, while not confirmed as a factor in the June 2019 flooding, the design greatly underestimates the flow from the design storm, posing a risk of increased flooding during future significant rain events. Specifically, the North Basin does not have sufficient capacity to protect against a 100-year storm, as required by the design documents. Engineering calculations and an MSDGC modeling run conducted as part of this review suggest that the Basin should be designed to handle a 100-year design flow ... [an] estimate [that is] is approximately 67% higher than the [calculation] used to design the North Basin.

The MSD took the scathing report and created a marshmallow summary memo to the Cincinnati City Manager. The memo, written by MSD tones down MSD's own responsibility in the project and casts blame to the contractors. The memo to the City Manager makes no mention that the model showed the project undersized by 67%. The basin design never met the required design goal for a 100 year storm. The MSD memo further asserts the contractors are not accepting responsibility for the failure. A narrative the primary contractor refutes for many reasons including their response the MSD provided a bad calibrated and validated model... that the MSD contract required design was wrong. 

The MSD memo to the City Manager makes additional statements that contradict the MSD's own design documentation.

The MSD created design document, MSD Recommendation of LMCPR Alternative 2012, says on page 93: 

"The intent of the sustainable projects is to design detention basins that are not classified as dams or that minimize dam impacts." 

Why would a contractor go against the design document? They wouldn't...but the MSD tries to throw the contractor under the bus anyhow in their memo to the City Manager:

"[the contractor] admits that it designed the facility with insufficient capacity and that it modified the design (without MSD’s knowledge) so that it would not be subject to Ohio Dam Safety Rules..."

This statement from the memo to the City Manager by the MSD directly contradicts the MSD created design documentation! It was in the MSD design document that the basins were not intended to be subject to Ohio Dam Safety Rules. 

The four major points from the engineering report were reduced to one sentence in the MSD letter to the City Manager that completely misrepresents the project's failure: 

 "...it does appear likely that some design modification will be required in order to ensure flood protection."  

The four bullets from the after-action report above make it clear the failure was much more than "some design modification" required, it was a complete breakdown of process. Someone had to approve each step of the project, someone had to oversee the project, someone even had to approve water being allowed in the basin before completion. The day after the failure the berm is being repaired...was the soil ready or appropriate for that repair? Is Northside at risk of another failure? The 'someone' that had oversight was supposed to be the MSD.

How and why the Cincinnati Metropolitan Sewer District failed the Northside community to this extreme needs to be investigated by a third party and made transparent through a public report. Oversight of the MSD needs to increase, not decrease as requested by the MSD, from Hamilton County.


The Google Drive share for the following documents obtained through Ohio Open Records Law and Freedom Of Information Act requests:

CDM Smith response to MSD September 19 2019
Memo Diana Christy Director MSD to Patrick Duhaney City Manager April 8 2020
MSD Recommendation of LMCPR Alternative 2012
Project ID 10240018 CSO 125 Stream Separation October 15 2015
MSDGC West Fork CSO 125 Project June 15-16 2019 Flood Event Investigation April 3 2020

Time for a new round of blog entries...

Litigation between the Cincinnati Metropolitan Sewer District (MSD) and Hamilton County has been in high gear now for over a year. During this time information has been difficult to obtain. Recent events with Cincinnati area several communities and third party engineering reports have made new information available.

County tries as City wastes...

I was following the June 2018 public hearings held by the Hamilton County Commissioners that the city and MSD failed to attend. The meetings were intended to be a joint presentation of how the EPA Consent Decree was to be addressed in the years to come...except the county and city cannot agree on a plan. Hamilton County cannot even get the City of Cincinnati and the MSD to the table. I observed first-hand the bipartisan frustration of the Hamilton County Commissioners at the second public feedback meeting in Delhi. 

The issue of the MSD looks to be going back to court as the City of Cincinnati continues to block cooperation with Hamilton County and admits again its own failure to produce results.

Exhibit 7

From the email, "...We have been instructed that there is no need for further transition meetings at this time.  I wanted to let you know that we are postponing the upcoming IT discussion and any future meetings indefinitely..."

The County Commissioners, led by President Todd Portune, have repeatedly tried to get the MSD and city to collaborate further. In their frustration the communication above has become part of their documentation submitted to the federal judge for the June 30th 2018 deadline.

The issue is further complicated by the admitted waste by the city. Part of the filing by Hamilton County for the June 30th, 2018 deadline is a communication from the Cincinnati City Solicitor that unerscores hundreds of hours of staff time wasted:

Excerpt from Exhibit 9

From the memo, "...Despite such efforts that accounted for hunderds of hours of CIty staff time, Plante Moran failed to produce a single shared services agreement or any work product at all..." Having worked in project managment this is a failing of the City, where were the milestones and accountability?

We certainly want to see more documentation on this issue for what was spent and what the expectations were but the firm mentioned in the communications has a good reputation so the first assumption is they were thrown under the bus...Cincinnati and Hamilton County deserve better than this. The City Council has to work through their internal 'issues'.