2021-11-24 EMC testimony (11-14) Holmes, Stephen - Lawsuits, AOCs, Consent Decrees

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From: Stephen Holmes Date: Sun, Nov 14, 2021 at 2:46 PM Subject: Lawsuits vs AOCs or judicial consent decrees To: Georjean Adams Cc: Dee Fulton, Rick Gaffney, Cory (Martha) Harden, Jon Olson, Charles “Chuck” Flaherty JR, Rob Culbertson Georjean: EPA Region 9 already has 2 AOCs out for Hawaii County to comply with. With Director of Enforcement and Compliance Assurance Amy Miller-Bowen coming to the Big Island to tour failed wastewater infrastructure that Director Mansour has publicly identified, it is highly likely that more AOCs will be forthcoming. Administrative Orders of Consent place timelines and establish fines for failure to meet deadlines. Hawaii County recently was hit with one such fine. A rigorous enforcement environment actually works to the benefit of DEM in getting financial support. EPA also has funding through WIFIA of which $49 million has been requested by DEM already, but this requires matching funds. An AOC for the failed Hilo WWTP, for instance, is likely as it is incapable of meeting standards. This will keep the pressure on. The collection system failures are also subject to enforcement action. Even staffing levels fall within the authority of EPA. Ramzi testified in his update that he has zero maintenance staff. This is just shocking and certainly is AOC worthy. We are fortunate to be facing this at a time when federal funding on infrastructure is getting a big push. This, however, does not preclude leveraging public private partnerships in conformance with the policy adopted by EMC. Ramzi simply doesn’t have the staffing needed to kick projects out the door and manage them properly to meet deadlines. This is where design build contracts come in. The current design for Pahala, for instance, is for MBR technology. I rather doubt any of the current operators have any familiarity with this. They don’t have the proper certifications to operate what they have now. DEM has positions open now that they can’t fill as they don’t offer competitive wages. It will take years for HR to go through the civil service process to create new positions and up salaries. With AOCs, you don’t have this luxury. Something has to give. Business as usual won’t work. When Honolulu was faced with the massive 2010 Federal Consent Decree with $3.5 billion in new investments, it required a major restructuring. Director Mansour was Wastewater Chief in Honolulu and had the benefit of the wastewater enterprise fund and the investment mechanism built into that to pay for all the projects and keep them on time. Consulting engineering firms to assist with the workload and file reports to the court overseeing the consent decree. All done outside civil service. I appreciate your getting back to me and sharing your thoughts. Interesting times ahead. Steve Holmes