YOUNGSTOWN — The federal government told a court that Youngstown’s contention that it needs to modify mandated improvements to its wastewater system because the costs greatly increased is “thinly supported and misleading.”

The city on March 15 asked Christopher A. Boyko, a senior judge for the U.S. Court’s Northern District of Ohio, to reduce the scope of the work after failing to convince the federal government that the improvement work needed changes.

The cost of a “wet weather facility” to be built near the city’s wastewater treatment plant to reduce combined sewer overflows “skyrocketed” from $62 million in 2002 to more than $240 million under an estimate done by a city-hired expert, according to a March 15 motion filed by Terrence S. Finn, an attorney with the Roetzel & Andress law firm representing the city in this case.

The city offered to build a storage basin to hold flow during a storm event and then release it back into the system as one option to the wet weather facility. Another option is adding a less expensive treatment facility at the wastewater treatment plant to provide the same level of control, Finn’s motion reads.

The city didn’t provide a cost estimate for either option and wrote it could do one or both projects.

U.S. Department of Justice attorneys — led by Pedro Segura, a trial attorney in the DOJ’s environmental enforcement division — wrote in an April 15 motion: “Youngstown’s proposal would swap the defined project it agreed to complete for a mere placeholder for one of several potential underbaked alternatives.”

The DOJ attorneys added: “Youngstown has not clearly described the alternatives, estimated their cost or evaluated their performance.”

If there are cost increases for the city for this work, the DOJ attorneys wrote it is the result of “the snowballing consequences of the city’s own decision to unilaterally suspend work at the wet water facility at least five years ago.”

In an April 22 response, Finn wrote: “The United States does not present any evidence to dispute the drastic increase in the cost of the WWF project. Rather, the United States mischaracterizes facts, improperly applies the modification standard and misconstrues the requirements of the CSO (combined sewer overflows) policy and the objectives of the consent decree.”

Finn added: “It is obvious that the United States is attempting to paint Youngstown in a bad light before the court.”

The legal salvos are because the city is seeking to alter a consent decree it signed in 2014 with the U.S. Environmental Protection Agency to do $160 million worth of work to improve its wastewater system over a 20-year period.

The city is asking Boyko to change the provisions of that agreement because of a major increase in costs while also stating in Finn’s legal filings that the projects are “significantly oversized and no longer effective.”

PROJECT COSTS

The first phase of the projects in the consent decree was upgrades to the city’s wastewater treatment plant that have been finished.

The initial estimate was $37.3 million, but the city court filing said it cost Youngstown $70 million.

The work helped reduce the sewer overflows that would be part of the wet water facility.

The wet water facility was supposed to be phase two and was required to start Feb. 7, 2022. It hasn’t begun.

The city court filing said the wet water facility was projected to cost $62 million and now is estimated at more than $240 million.

“Youngstown could not have foreseen this drastic increase in costs,” Finn wrote in the April 22 filing.

He added: “Youngstown has demonstrated that the WWF project is no longer a cost-effective control measure.”

The DOJ attorneys argued that Youngstown hasn’t identified alternatives and compared them to the project it agreed to perform so “the court should not relieve Youngstown of its existing obligation to build a wet water facility.”

The third phase is an interceptor sewer project to keep wastewater from 13 lines from flowing into Mill Creek Park.

Design work was supposed to start July 11, 2020, and construction was to start this April 5.

The city missed the deadline, but the board of control on March 15 approved $4.8 million of design work. The city also plans to have a compressed schedule and finish the work 15 months earlier than the initial time.

That project was estimated to cost $47.7 million and will now cost $72.5 million, according to Finn’s court filing.

Also, city council will consider legislation Wednesday to have the board of control enter into an agreement at a cost of up to $3 million to have a consultant analyze and develop alternative control measures for combined sewer overflows at the confluence of Crab Creek and the Mahoning River as required under the consent decree.

DOJ SEEKS PENALTY

The DOJ’s April 15 court motion states: “Youngstown has not shown a significant change in circumstances warranting revisions to the consent decree” and Boyko should dismiss the city’s request.

“An increased cost for the wet water facility project is not an unforeseen, significant change in circumstances justifying relief from the project,” the DOJ filing reads.

Finn also wrote in the April 22 response that the court should deny the federal government’s demand for penalties.

Because of the delays, the DOJ on Sept. 29 demanded half of a $1,479,000 penalty from Youngstown with Segura writing the city “defaulted” on following through with the mandated wastewater improvements for more than two years.

Half of the penalties — $739,500 — was to be paid to the federal EPA with the Ohio EPA allowed to make demand for the other half.

The DOJ renewed that demand in its April 15 court motion.

A March 29 filing from Mark J. Navarre, assistant Ohio attorney general in its environmental enforcement division, states Youngstown should be permitted to move ahead with collecting information for alternatives to the wet water facility.

Navarre wrote: “The state does not excuse Youngstown’s noncompliance with the current (long-term control plan) implementation schedule, but is concerned that Youngstown’s expenditure of limited public dollars results in the construction of a cost-effective remedy.”

The city’s request, Navarre added, “is reasonable in light of the evident need for additional time.”

The city wants to have data complete by July, modeling done on an alternative by October and preliminary design work done by February 2025, according to the state filing.

“The state also agrees with the United States that the city of Youngstown should have initiated these proposals years ago,” Navarre’s filing reads.

Have an interesting story? Contact David Skolnick by email at dskolnick@vindy.com. Follow him on X, formerly Twitter, @dskolnick.