Monday, March 31, 2008

Oconee Commissioners Respond to Citizen Concerns

Story Behind the Rocky Branch Victory

The March 4 meeting of the Oconee County Board of Commissioners produced a major victory for those of us interested in protecting Barber Creek, though this fact has been largely ignored by the media.

As I reported in my blog on the evening of March 4, the BOC accepted a design for the Rocky Branch sewage treatment plant that should produce water of a higher quality than is required by the state and that includes holding facilities that will allow the County to store water from the sewage plant when Barber Creek is flooding.

The decision was made because of the actions of three members of the Board, Commissioners Margaret Hale, Chuck Horton and Jim Luke, and was contrary to the desires of county administrators, who report to BOC Chairman Melvin Davis.

Here’s the background of the story.

At the December 12, 2006, hearing before the state Environmental Protection Division on the permit for Rocky Branch sewage treatment plant, the Friends of Barber Creek turned in more than 45 signed petitions asking for three concessions.

First, we wanted Oconee County to agree to treat the effluent to the highest standard the technology used in the plant would allow.

Second, we wanted the County to agree to hold water from the plant when Barber Creek was flooding. The County was seeking and received a permit to discharge effluent into Barber Creek from the sewage plant.

Third, we wanted the County to set up a system of independent monitoring of the plant.

We knew when we made these three requests that the Oconee County Board of Commissioners, not the EPD, was the body that could provide what we needed. The EPD hearing gave us a forum to voice our requests.

The Board of Directors of Friends of Barber Creek, made up of Tim Price, Karen Kimbaris, Eleanor Cotton, Joe Block and myself, restated these requests to the BOC on numerous occasions after the EPD hearing.

The crucial time for two of these requests–dealing with water quality and flooding–was the March 4 meeting, when the BOC was voting on the design contract for the Rocky Branch upgrade.

At the BOC meeting, County Utility Department Director John Hatcher and Herb Feldman, the president of HSF Engineering, said the plant will be able to match the quality of the County's Calls Creek plant, which exceeds state standards significantly. HSF submitted the successful bid for the Rocky Branch upgrade.

Hatcher and the Feldman also said that the design includes ponds capable of holding 25 day's worth of water and that these would be used to hold water in times of flooding of Barber Creek.

Hearing these promises, the Board of Directors of Friends of Barber Creek endorsed the bid selection, and the BOC approved the bid.

These are only promises, of course, which is why monitoring remains crucial.

Monitoring is an operational rather than a design issue. At some point in the future, the BOC should address how the new capacity from the plant will be allocated between commercial and residential development. That will be the time when independent monitoring can be raised.

So how did we accomplish what we have already accomplished?

To understand the answer, it is important to differentiate between the four members of the Board of Commissioners and the Chairman of the Board of Commissioners.

Oconee County has a strong Chairman, by statute, by tradition, and because of the practices of the incumbent, Melvin Davis.

It makes sense to think of Davis as the chief executive of the County, and the four commissioners as the legislative body. The problem with the characterization, however, is that Davis is, in fact, the Chairman of the Commission as well. He sets the agenda and he votes in the case of a tie.

More important than the power to run the Commission meetings, however, is the executive power of the Chairman. He appoints all the non-elected officers of the County, and they report to him. Included are the heads of departments, the chief administrative officer, and the clerk of the Commission.

Chairman Davis and Gary Dodd, Chris Thomas and John Hatcher, all from the Utility Department, have repeatedly touted the quality of water that Calls Creek produces and the upgraded Rocky Branch treatment plants would produce, because they said, these plants used membrane filtration.

Davis and his Utility Department repeatedly said the water coming out of these plants exceeds and will exceed the standards set by the state for reuse quality water--which each plant is permitted to produce.

Davis and his administrative colleagues said, because of membrane filtration, these plants were producing "near drinking level quality water."

Data that Davis released to me from Calls Creek in September of 2007--the same data the County filed with the EPD for the plant--showed that the plant does greatly exceed the permitted standards.

In fact, Calls Creek for the seven months for which I was given data nearly matched the permitted output quality of the F. Wayne Hill sewage plant in Gwinnett County--the plant that has the highest permit standards in the state.

But the Calls Creek plant has a big problem. It goes through membranes very quickly and consumes a lot of energy. For these reasons, it is very expensive to operate.

Davis and the Utility Department never publicly acknowledged this problem. Instead, they tried to abandon the membrane technology through a series of secret maneuvers.

In June of 2007, the County administration issued a Request for Proposal for the upgrade of Rocky Branch. The RFP specified that the plant would use membrane filtration and a design matching that at Calls Creek.

At a presubmittal meeting with potential bidders, however, the Utility Department tipped bidders that it was interested in abandoning membrane filtration.

Jordan Jones & Goulding submitted a bid that did not use membrane filtration and that could have met the state reuse standard required by the permit, but it would not have produced water of the same quality as Calls Creek.

The Selection Committee--made up of County appointees and consultants reporting to Davis--recommended that JJ&G get the contract.

When Davis brought the bid before the BOC on August 28, however, he could not get a motion for action. Commissioner Chuck Horton said he would not accept JJ&G, since he was unhappy with its work on a proposed County reservoir. Commissioner Margaret Hale said the County had never voted to go forward with Rocky Branch, so a vote on a bid was premature.

No action was taken. By the time the BOC met again on September 4, I had filed an open records request and reviewed the bids. I pointed out the irregularity of violating the RFP and that the County was abandoning membrane filtration.

At that meeting, the BOC voted to go forward with the Rocky Branch upgrade. County administrator Alan Theriault, who reports to Davis, said the County would start the bidding process over. He never explained why that was necessary.

In November, the County reissued a Request for Proposal for the Rocky Branch upgrade. This time, it specified that two designs were possible. The first was the original design; the second was some alternate that also used membrane filtration.

Emil Beshara, the County Public Works director, told me on February 5 that membrane's were specified because of the pressure of Friends of Barber Creek. The County administration didn't think it could get approval for a design that did not use membrane filtration, he said.

Beshara said the County didn't know what the bidders would propose in response to the second RFP with its alternate design option.

This second time around, Davis and his administrators decided to conduct the bidding process in secret. The stated reason was to save the taxpayers money by negotiating over costs, but the more likely reason was to negotiate over design.

At the February 5, 2008, meeting of the BOC, the Selection Committee appointed by the BOC to review the bids--made up of County officials and consultants who report to Davis--delivered its recommendation to the Board.

At the insistence of Commissioner Jim Luke, the Commissioners had been invited to the closed meetings of the Selection Committee. Luke told me he asked this because he knew I was not going to be allowed to attend, and I was not. Commissioner Horton attended those meetings.

I had a long talk with Commissioner Luke following the February 26 meeting. Luke made it clear his patience with Friends of Barber Creek was running thin.

I concluded that the BOC was going to accept the Selection Committee recommendation, and we had little room to negotiate.

On the morning of February 27, I sent a note to John Hatcher, now the Utility Department director, informing him that I wanted to recommend to the Board of Directors of Friends of Barber Creek that we endorse the recommendation of the Selection Committee that the bid go to HSF Engineering. I copied the message to Davis and the four Commissioners.

I told Hatcher we only needed two things. First, we needed data from a plant using a similar design showing that it would match the quality of the Calls Creek plant. Second, we needed to know how many days of storage capacity the plant would have.

Two days later, Hatcher wrote me back and said there were no data he could provide me and that storage of water for flooding was not a part of the plant design.

Luke shot back a message to Hatcher saying his response on the Calls Creek standard was not sufficient. Horton seconded.

At this point, Beshara--who reports to Davis--weighed in on the storage issue. He said there was no "scientific" reason to limit discharge in times of flooding. He also said it had been a mistake for the County to cave to the pressure to require membrane filtration for the plant.

I met with Commissioner Horton on Saturday, March 1, and with Commissioner Hale on Sunday, March 2. I was pretty sure we had their support for our requests regarding water quality and quantity.

Commissioner Don Norris doesn't respond to my emails. He usually votes in support of whatever Davis and the department heads recommends.

During my meeting with Hale, she told me she pushed Davis to schedule a presentation by HSF President Herb Feldman at the meeting on March 4.

At that meeting, Hatcher and Feldman promised to meet our requests for water quality and to hold water in times of flooding.

It is quite clear that the water coming out of Rocky Branch would have been of a lower quality had Davis and his administration gotten what it wanted. And no provision would have been made to hold the water in times of flooding.

We scored a major victory because Commissioners Hale, Horton and Luke were willing to listen to our concerns and stand up to Davis and his administration.

It is a lesson we should not forget.

Wednesday, March 05, 2008

Attorney General Approves Closed Meetings

Sides with County's Secret Bidding Procedures

Senior Assistant Attorney General Stefan Ritter informed me in a letter dated February 29, 2008, that, in his view, Oconee County did not violate Georgia Open Meetings Act when it refused to allow me to attend the meetings of the Selection Committee reviewing the bids for the Rocky Branch sewage treatment plant.

I received the letter today, but Daniel Haygood, Oconee County Attorney, received a copy of the letter yesterday and announced the conclusion of Ritter at the Board of Commissioners meeting last night. He also sent copies to the Athens Banner-Herald, and a story appeared in the paper today on the decision.

Ritter wrote that "the meetings of the Selection Committee are not meetings as defined by the Act or at least I have insufficient evidence to believe that they are open meetings."

Ritter advised me to "consult with counsel of your own choosing" if I wished to pursue the matter. He said the file, created in response to my complaint to him of January 17, 2008, is now closed.

Ritter called me on the day he wrote the letter to advise me that he was sending it. He told me there was a conflict between the open records law of the state which requires agencies such as the Board of Commissioners to hold open meetings and the law allowing counties to conduct closed bidding processes. He said, in his view, recent court cases suggested that the bidding law was given preference.

County Attorney Haygood had written to me, and copied that letter to Ritter, on February 13, 2008, arguing that the committee reviewing the bids was "not a committee created by the Board of Commissioners" but rather "it is the process devised by Precision Planning, Inc., to evaluate the bids."

At the BOC meeting of February 26, 2008, however, Chairman Melvin Davis acknowledged that the committee reviewing the bids was indeed the Selection Committee created by the BOC as specified in the Request for Proposal for the bids.

I sent Ritter a copy of the transcript of that conversation. He used the term "Selection Committee" in his letter to me.

Ritter’s conclusion that the County is allowed to close the meeting represents a significant restriction on the Open Meetings Law. I argued that, even if the County could close the meeting to review the bids, it had to meet in open first and then go into executive session. Ritter did not address that issue.

The County obviously was interested in publicizing Ritter’s decision. The editor of The Oconee Leader also indicated he got a copy yesterday.

The Banner-Herald ran a front-page story in its January 28 issue about my complaint to the Attorney General and followed that two days later with an editorial criticizing the County.

In my view, the paper should have given Ritter’s response more prominence than it did because of the way it played the earlier story. Today’s story appeared only on page A4.

I plan to discuss Ritter’s conclusion with press freedom and open government advocates in the state.

I have put all of the correspondence regarding the case, including Ritter's February 29 letter to me, on the web site I have created to supplement this blog.

Tuesday, March 04, 2008

County to Meet Requests for Rocky Branch

Barber Creek Board Endorses Bid Selection

Oconee County Utility Department Head John Hatcher and Herb Feldman, president of HSF Engineering, both promised at the Oconee County Board of Commissioners meeting tonight that the water coming out of an upgraded Rocky Branch sewage treatment plant will equal or exceed the quality of water coming out of the Calls Creek plant.

They also said the plant will be built with the capability of holding 25 days of treated water and that it will be the County’s policy to hold that treated water rather than discharge it into Barber Creek when the Creek is flooded.

Hearing those two promises, on behalf of the Board of Directors of Friends of Barber Creek, I endorsed the recommendation of the County’s bid Selection Committee that the BOC award the design contract for the plant to HSF Engineering of Snellville.

Friends of Barber Creek Board members had approved that action before the meeting, pending promises by the County about water quality and quantity.

The BOC approved the $572,000 contract for the plant upgrade design unanimously. The upgrade is expected to cost $8 million and will produce 1 million gallons of treated wastewater each day. The County has a permit to discharge that water into Barber Creek.

Calls Creek, the County’s only other sewage plant, uses a different membrane treatment technology than HSF proposed for Rocky Branch, but the water coming out of Calls Creek greatly exceeds the permitted levels for the plant and those the state Environment Protection Division set for Rocky Branch.

Friends of Barber Creek has consistently asked the County to exceed the permitted levels for Rocky Branch, using the F. Wayne Hill plant in Gwinnett County as a standard. That plant had more restrictive permitting imposed after Lake Lanier residents sued the EPD to get the stricter permit.

Oconee County has shown that the Calls Creek plant meets or betters the Gwinnett plant permit levels.

Hatcher and Feldman both gave presentations to the Board before the vote, and both outlined the capability of the plant design to exceed the quality standards of the EPD permit. Feldman presented data from other plants showing the capability of the technology.

Hatcher revealed that the County had storage capability for 25 million gallons of treated wastewater on the site. Feldman said he had never designed a plant in this way before, but he felt it was appropriate to hold water during times when Barber Creek was flooded and would recommend that this be the policy of the County.

Only on Friday, Hatcher and County Utility Department Head Emil Beshara had said that there would be no storage for treated wastewater on site. Beshara said there was no scientific evidence that dumping water into a flooded creek would do any harm.

Hatcher had also said there was no way to provide evidence of the capability of the technology Feldman proposed to use at the plant since a plant of this sort had never been built before.

Tim Price, vice president of Friends of Barber Creek, reminded BOC Chairman Melvin Davis before the vote of a promise he had made at the January 29, 2008, meeting, to do everything possible to protect Barber Creek when operating the Rocky Banch plant.

The County has hidden the discussions of the bids for the Rocky Branch plant behind a cloak of secrecy, arguing that it had the ability to close meetings to the public because of state law allowing closed bidding.

County Attorney Daniel Haygood announced at the meeting last night that Stefan Ritter, senior assistant attorney general, had decided that the County had done nothing wrong in holding the secret meetings.

Ritter called me on Friday to indicate I would receive a letter from him regarding my complaint about the closed meetings. I have not yet received that letter, a copy of which apparently was sent to Haygood.

Sunday, March 02, 2008

Key Vote on Rocky Branch Bid Upcoming

Emil the Scientist Weighs In; Proposals "Too Voluminous" for Web

The Oconee County Board of Commissioners on Tuesday night will make the most important decision yet on the upgrade of the Rocky Branch sewage treatment plant when it decides whether to accept the recommendation of the Selection Committee it appointed to review the bids for the engineering design of the plant.

That Committee has recommended that HSF Engineering of Snellville be awarded a $572,000 contract for the upgrade. The Committee also recommended an alternate design, rather than the design used at the County’s only other sewage plant on Calls Creek.

The design of the plant is crucial, for it determines the quality of the water that will be released from the plant and discharged into Barber Creek. The County has a permit from the state Environmental Protection Division for discharge of up to 1 million gallons per day of effluent into the Creek.

The design employed also determines how much water the County can store and not release into the Creek when it is flooded.

Friends of Barber Creek has repeatedly asked that the County treat the water to the highest quality technology allows and hold water in times Barber Creek is flooding.

Friends of Barber Creek has used the F. Wayne Hill sewage plant in Gwinnett County as a standard because the EPD has imposed the most stringent standards in the state on this plant, which discharges into Lake Lanier.

Data released to be in September by Oconee County Utility Department Head John Hatcher, at the request of BOC Chairman Melvin Davis, show that the Oconee County Calls Creek plant generally meets or exceeds those standards.

Oconee County has repeatedly touted the Calls Creek plant as a model, and it said that Rocky Branch would use the same technology. The County began to hedge in late summer of 2007, however, indicating that the plant is expensive to operate.

In the Request for Proposal for the upgrade the County issued on November 16, 2007, the County allowed firms to submit alternative designs as long as they included some form of membrane filtration, which the County has said allows the Calls Creek plant to achieve such a high level of treatment.

HSF "highly recommended" the alternate design because "It is less expensive to build" and is "much more reliable and less expensive to operate and maintain." The HSF proposal refers to the original design as a MBR (membrane bio-reactor) and proposed instead a Qualifluent membrane design.

The difference, according to the HSF proposal, is that the MBR design "places membranes in "mixed liquor" with concentrations from 8,000 to 10,000 milligrams per liter while the Qualifluent membrant plant, which uses pretreatment prior to membrane filtration, places the membranes in effluent at 30 mg/l.

The result, according to the proposal, is much longer membrane life with the same quality of effluent.

Hatcher reported to the BOC at its meeting of February 26 that the construction cost for the plant will be $8 million. The HSF proposal lists a cost of $9 million for the base design but no figure for the alternate design.

On the morning of February 27, I sent Hatcher an email asking him to if he could provide data on the effluent from the plants that HSF is operating or has built using the same technology as will be used at Rocky Branch. I said I was seeking the "same type of data you provided me on Calls Creek."

Hatcher wrote back on the afternoon of the 28th that:

"I do not have any operating data from the plants that HSF has constructed because these plants do not use membrane filtration and would not be a good comparison to the effluent of Calls Creek. While his plants have met reuse requirements, the effluent is not filtered to the same quality that the membranes achieve at Calls Creek. Please keep in mind that many types of plants are able to produce water that meets re-use standards but the Rocky Branch design as proposed would treat to a much higher quality than is required. Any comparison between the HSF plants and Calls Creek would be apples and oranges."

After Commissioners Jim Luke and Chuck Horton intervened and asked for clarification, Hatcher sent an email message on Friday afternoon saying:

"I'm working on getting data from a plant using the Siemens CMF-S membranes which are the 'drinking water' membranes that would be used on the back end of Rocky Branch to polish the water leaving the clarifier. As soon as I get the data, I will forward this to everyone."

The issue of water storage also has produced an interesting turn. The County has repeatedly said it would have sufficient storage capacity on site so it would not have to release water into a flooded creek.

Emil Beshara, the County’s Public Works Director, on Friday said in an email that my concerns about the release of water from Rocky Branch into a flooded creek are not "based on sound science" and that the County would not hold water in times of flooding.

Here are two paragraphs from the lengthy message (WWTR is waste water treatment plant):

"The storage capacity that is designed into every WWTP is there for a purpose- to provide a means to avoid discharge to the receiving water body in the event of a plant malfunction. If that storage capacity were to be intentionally reduced because the BOC simply wanted to placate your concerns that are not (at least so far) based on sound science, we would be losing available storage capacity that could be desperately needed in the event of a plant malfunction. I asked you specifically about other permitted WWTPs that employ this practice because I am interested in whether EPD would even allow such action as it would consume design storage capacity for reasons other than storage of off-specification effluent.

"EPD evaluates stream flow capacity, and sizes wasteload allocations based on such, so they would appear to disagree with your assertion that discharge would have any significant impact during times of flood. I’m not implying that you (or they) are wrong, but since we are dealing with science here, you’ll have to produce some real numbers in order to make your point. My evaluation of your concerns in this regard to date is that it would be inappropriate to direct on-spec effluent to the storage facilities due solely to flood conditions. Not only does it appear (by my initial impression and your own admission) that the result would be a small, incremental impact, but the result of mixing specification effluent with off-spec would require re-treatment of the stored product."

In a subsequent message, Beshara even criticized the RFP itself for including membrane filtration, which he said was an unnecessary expense for the County. He was not working for the County when the RFP was drafted, he said.

The County administration has wrapped the whole process of making the decision on this design in secrecy, refusing to release any information on the bids to the public until the day after the Feb. 26 meeting.

At the January 29 meeting of the BOC, Chairman Davis said all bids would be put on the County’s web site after the February 26 meeting, but it did not do that. County Administrative Office Alan Theriault said at that meeting the nine bids were too "voluminous."

I reviewed all of them and copied parts of each of them on February 29 at the courthouse. Counting pages is hard, since many uses spacers, but none appeared to be longer than 50 pages, and most are in the 40-page range. All, it appears, were produced electronically, and the County could have requested electronic copies had it wanted to make them available to citizens.

I specifically asked on February 27 for an electronic copy of the HSF proposal, but my request was never acknowledged. I copied the full proposal on the 29th. I needed 43 pages to copy the full text, oversized charts, and the addendum.

Here is what Chairman Davis said on the 29th:

"I want to reemphasize that when the final recommendations are made to this BOC, all proposals and bids will be public at that time and placed on the web site for review, and the BOC will not act on that proposal on that particular night or recommendation to allow plenty of time for public input."

Many of these questions could have been answered earlier, had there really been "plenty of time for public input."