ATTORNEY Elizabeth Loeb of the U.S. Department of Justice-Environmental Enforcement Section is requesting the federal court to focus on the Commonwealth Utilities Corp.’s compliance with Stipulated Order 1 and, particularly on CUC’s management issues.
In a status report, Loeb said despite the improvements, the progress in SO1 compliance was slowed by continual personnel and procurement issues.
SO1 requires CUC to continually staff certain critical management positions.
“However, CUC’s chronic history of lengthy management position vacancies has not improved,” Loeb said. “These vacancies have impeded CUC’s operations and compliance with the orders. Currently, the following management positions at CUC are vacant: executive director, wastewater and drinking water division supervisor, chief financial officer, and chief engineer.”
Loeb stated CUC is “seeking a qualified executive director after the former executive director resigned in February 2023. The deputy executive director resigned on April 27, 2023, and CUC filled this position in early August, with the drinking water and wastewater division manager, creating a vacancy for the drinking water and wastewater division position. The chief engineer position, a critical position for the utility, has been vacant for three years since February 24, 2020. The chief financial officer position has been vacant since May 21, 2023. The wastewater treatment plant supervisor position, which was vacant for four and a half years, since January 13, 2019, was finally filled on August 28, 2023.”
Loeb said it is “critical that CUC hire and retain persons who meet the qualifications and fill all vacancies in a timely manner.”
In a letter dated Sept. 12, DOJ conveyed its concerns to CUC and asked for information about its recruitment and hiring procedures, Loeb said.
“The United States would like to discuss this longstanding compliance issue with the court as court intervention may be required to address it,” she added.
Procurement
As for procurement procedures, Loeb said Paragraph 20 of SO1 requires CUC to develop and submit for Environmental Protection Agency approval revised procurement procedures by March 11, 2010.
Thirteen years later, she added, “CUC has still failed to do so.”
“CUC previously submitted a copy of CUC procurement regulations to EPA on March 2, 2010. EPA disapproved the submission on March 1, 2011, explaining that the submission did not include any analysis or assessment of the efficiency or timeliness of the regulations, nor provide SOPs or otherwise modify the existing regulations,” Loeb said.
CUC provided a response on May 30, 2011, stating that it is “not offering concrete changes or solutions to its current regulations.”
EPA disapproved CUC’s submission as inadequate on August 13, 2018.
Nearly four years later, on May 31, 2022, CUC provided an “Interim Progress Report.”
According to Loeb, “The Interim Progress Report stated [that] CUC had recently adopted amendments to procurement regulations to allow for indefinite delivery, indefinite-quantities contracts and provided procurement clarifications for architect-engineering professional services contracts. EPA accepted the progress documented in the progress report and on November 3, 2022, requested CUC to provide a final submission by January 15, 2023. On January 26, 2023, CUC provided a submission, which did not address EPA’s comments and EPA rejected it as inadequate. CUC provided a revised submission on February 6, 2023, subsequently revised and submitted it on February 9, 2023. The revised submission generally addressed EPA’s comments but remained insufficient to demonstrate an efficient procurement process.”
As a result, lengthy and burdensome procurement procedures remain an impediment to efficient and timely repair of broken equipment, she added.
“CUC has indicated that new procurement procedures have been submitted to the Board for approval. CUC provided these amendments to EPA for review on September 8, 2023. EPA has not yet had time to fully review. Court intervention may be necessary to address this longstanding issue,” Loeb said.
Background
In Nov. 2008, after the U.S. Environmental Protection Agency cited CUC for violating the Clean Water Act and the Safe Drinking Water Act, the federal court issued Stipulated Orders 1 and 2.
SO1 focuses on CUC’s management structure, drinking water and wastewater issues, such as requiring CUC to provide safe drinking water to residents on a 24-hour basis, maintaining adequate chlorine supplies, safely treating and discharging wastewater, developing long-term capital improvement and financial plans, and implementing the projects described in the completed Master Plan. SO1 also restructures CUC’s organization to reflect a typically functioning utility and requires that key employees possess appropriate education and experience levels.
SO2 focuses on oil issues such as requiring CUC to repair and replace oil storage units and operation infrastructure, manage tank and pipeline facilities, manage facility wastes, and manage facility drainage and storm water run-off. CUC is also required to maintain infrastructure and implement spill and emergency response protocols.
The next status conference before designated federal Judge David O. Carter is scheduled for Feb. 2024.
