Summary of Investigation to Borough of Camp Hill, Pennsylvania: Legal Analysis of Releases of Sewage and Failure to Report to DEP from

2008 to 2013, with Recommendations

Prepared by: Saul Ewing LLP Two North Second Street, 7th Fl. Harrisburg, PA 17101 October 1, 2013

Summary of Investigation to Borough of Camp Hill, Pennsylvania: Legal Analysis of Releases of Sewage and Failure to Report to DEP from 2008 to 2013, with Recommendations On January 14, 2013, the Pennsylvania Department of Environmental Protection (DEP) alerted the Borough of Camp Hill that it was investigating allegations of releases of untreated sewage from the Boroughs sewage conveyance system and failure to give notice to DEP of those releases in 2011. Ultimately, on May 9, 2013, the Borough and DEP entered into a Consent Order and Agreement (COA) in which the Borough acknowledged the releases and failure to give notice. That COA required the Borough to pay a substantial civil penalty of $140,000, and to institute corrections to its sewage conveyance system. As part of those corrections, the Borough instituted a formal reporting and recordkeeping protocol to be followed during emergency conditions relating to the sewage system. Much of Camp Hills sewer system infrastructure is between 50 and 80 years old. Approximately 80% to 90% of the sewer lines were constructed of terra cotta. Over time, these clay pipes will deteriorate. The deterioration of Camp Hills sanitary sewer lines, like many other older municipal sewer lines, results in Inflow and Infiltration (I/I). This means that groundwater will enter the sewer lines through cracks and openings, causing an increase in the volume of untreated water that must be handled by those lines and the Boroughs pumping stations. During severe precipitation events, several of Camp Hills sewage pumping stations (in particular, Spangler Rd., Athol St., Creek Rd. and Park) may overflow or cause backups of sewage into nearby residences. In response to this health concern, Camp Hill officials have pumped out sewage (bypasses) from those stations allowing the sewage to go onto the ground and into the nearby Yellow Breeches and Conodoguinet Creeks. This is a violation of Pennsylvania law. In addition, from 2008 through 2011, when this occurred, notice was not given to DEP. Failure to give notice also is a violation of Pennsylvania law. In 2011, Central Pennsylvania experienced the largest amount of precipitation on record and Camp Hills sewer lines and pump stations were overwhelmed with water. That year there were a number of instances of bypassing and overflowing at several of the Camp Hill pumping stations. According to DEP, in 2011, there were 11 separate occasions totaling 95 incidents of releases. DEP claims that on average there have been six releases of sewage per year. We conclude that in some years it is likely there were no releases. Due to the lack of written records and the conflicting memories of the employees who ought to know, it is not possible to state how many release events or total days of releases have occurred over time. Records that have been made available and interviews of employees do not support DEPs allegation. 2

 The Sewer Department is a subsidiary of the Public Works Department. It is made up of two employees Michael Klinger and John Hawk. Mr. Klinger is a Certified Operator, certified by the Pennsylvania DEP. This means that he has certain obligations pursuant to his certification. One task that Mr. Kline asserts was delegated to Mr. Klinger was to provide notice to DEP and Borough Management in the event of spills or releases. Prior to Mr. Kline becoming Borough Manager (in 2005), the Public Works Department never gave notice on its own to DEP. Also, prior to Mr. Kline, the Public Works Dept. never on its own made the decision to pump out sewage to prevent backups and overflows. This decision in the past always was made by the Borough Manager. At the same time, in the past, the Borough never employed a Certified Operator. Mr. Klinger became a Certified Operator (certified by DEP) in 2004. A concern that we have is the poisonous relationship between the employees in the Sewer Department (as well as the Public Works Department) with respect to management. This includes relations with Mr. Kline, but also relations with Mr. Auxer, the Public Works Foreman. With respect to the failures of the sewer system and releases, this means that, at the very least, there is or may be a difficulty or complete failure to communicate. In addition, reasonable requests from management, such as the implementation of the reporting and recordkeeping protocol, have been subject to a grievance by the unionized Sewer Department and Public Works Department employees. The questioning of the reporting and recordkeeping protocol puts township residents and the environment at risk. The Public Works Department attempts to act as though it is somewhat independent of the Sewer Department. In reality, this is not the case. The Foreman of the Public Works Department (Mr. Auxer) takes day-to-day responsibility for the Sewer Department. Mr. Kline currently holds the title of Director of Public Works, but it is unclear if he has any responsibilities associated with that designation. The Sewer and Public Works Departments interact significantly and conduct regular joint meetings that are lead by Mr. Auxer. During our interviews with Mr. Auxer, he claimed not to have knowledge regarding many of the activities of the Sewer Department. This practice, which was tolerated by management, is a problem. In our view, the Sewer Department should report to the Public Works Department and the Public Works Department should report to management. The head of the Public Works Department should bear the responsibility of knowing what is going on in the Sewer Department and ought to be responsible for activities of the Sewer Department. It is bad management for the person who heads the Public Works Department (whether it is Mr. Kline or Mr. Auxer) to claim that he has little knowledge of the goings on of the Sewer Department. Mark Malarich, P.E., of Gannett Fleming Engineers, is the Boroughs consulting engineer. He knows and understands the Boroughs sewer system and all aspects of engineering relating to the sewer system. He also knows the obligations relative to reporting to DEP and has expressed concerns, from time to time, regarding reporting (or the lack there of) to DEP. He directly reports to Mr. Kline and communicates regularly with the Sewer Department. He has asked the right questions of the Sewer Dept. (e.g. Have you reported the release to DEP?). There appears, however, to have been no follow up. It is also unclear if he has ever addressed his concerns to Mr. Kline. We believe that any consultants employed by the Borough ought to make sure that 3

communications relating to reporting are followed up with those ultimately responsible for making those calls. The management of the Borough is vested in the Borough Manager, Gary Kline, and the Assistant Borough Manager, Anne Shambaugh. Principal responsibility, of course, is with the Borough Manager. During Mr. Klines tenure, to a large extent, the management has acted in a hands off manner with respect to the Public Works and Sewer Departments. From 2006 until 2013, those departments were allowed to undertake a variety of significant activities, apparently with little oversight or coordination. To the extent that there was management of the Sewer Department by the Borough Manager, there is a significant dispute regarding the extent of any coordination between management and the Department. For example, the Sewer Department claims that they never undertook pumping onto the ground or into streams without the approval of Mr. Kline. Mr. Kline claims never to have given such approval or if such approval was given, it was given entirely on the basis of information that was provided to him and on which he relied. Also, the Sewer Department employees and Mr. Auxer claim that it was the responsibility of the Borough Manager to give notice of any releases to DEP. Mr. Kline, on the other hand, claims that it was never his responsibility to give such notices and he relied on the Public Works Department and Sewer Department (in particular, the Certified Operator) to make such notices. Among the numerous reports received by the Borough Council, it receives monthly reports from the Public Works Department which advises Borough Council regarding its activities. On at least several occasions in 2011, the Public Works Dept. indicated that there had been spills of sewage and releases to waters of the Commonwealth. These reports were not all that clear, but they indicated that there had been trouble with the sewer system. It has been reported that there was no discussion or follow-up by Council concerning releases or pumping out until after the January 2013 inspection by DEP. Conclusions Camp Hills sewer conveyance system is old and has reached the end of its useful life. This has resulted in I/I (excessive groundwater entering the system during precipitation events) and backups into homes. It appears that there was little choice but to pump out the system during heavy precipitation events, as the alternative of allowing sewage to enter private homes is far worse. This would create a significant public health problem that exceeds the problem caused by pumping out (we are not minimizing the health and environmental problems caused by pumping out, but are attempting to balance those stark alternatives). Multiple individuals bear some responsibility with respect to both the releases and failure to give notice. We have looked closely at who did or did not provide notice to DEP and who was responsible for providing notice. Until DEPs enforcement action in January 2013, the 4

Sewer and Public Works Departments claim that the Borough Manager was giving these notices to DEP. Mr. Kline claims that the Sewer or Public Works Departments were giving these notices to DEP. The Certified Operator may be required to give notice to DEP, 25 Pa. Code 302.1201(b)(15), depending upon the practice of the system. We understand that many systems in Central Pennsylvania require that any notice to DEP be given by the Certified Operator. The Borough Manager is the chief administrative executive of Camp Hill and bears ultimate responsibility for the administration of the Borough. Neither gave any notice. Fortunately, the new reporting and recordkeeping protocol clarifies when and how notice to DEP and others is to be given. The protocol establishes a clear line of responsibility. The Borough needs to implement an extensive program to identify areas in which I/I is occurring and to replace portions of the system that are damaged or antiquated. This program should identify areas in which I/I exists. Once those areas have been identified they ought to be repaired. While the new sewage pump station (replacing the Spangler Rd. pumping station) will greatly enhance the sewage pumping capabilities of the Borough, this new station will only resolve issues in the southern part of the Borough (south of U.S. Routes 11/15 and Siebert Park). The northern part of the Borough (essentially, north of U.S. Route 11/15), served by the Creek Road pumping station, will not be greatly improved by the addition of the new pumping station. It is this northern part of the Borough that appears to require the greatest attention for the repair of I/I. The I/I issues likely will get worse in the future and there likely will be more releases unless the system is repaired. Other areas may also need to be repaired. Without any doubt, it will be quite expensive to fix the infrastructure causing the I/I problem. To be sure, this is not a problem that was created by the current Borough Council or by any current Borough employees. Rather, it is a matter resulting from deferral of this significant capital expense over decades. Failure to evaluate and repair the system likely will result in releases in the future. This will result in likely pollution to waters of the Commonwealth and the possibility of backups into residents homes. In addition, future releases will also result in DEP imposing new and severe civil penalties and other enforcement action. Recommendations Evaluate and Repair the Sewer System. Like any other system of this vintage, the sewer system has long ago reached the end of its useful life and should be completely evaluated. Unfortunately, this will be a very expensive effort, especially in light of the ongoing expense associated with the new pump station and interconnection with Hampden Township. An aggressive I/I program needs to be implemented and the system

needs to be repaired (where it can be repaired) or replaced. The Creek Rd. pump station needs to be evaluated and upgraded or replaced to accommodate flows. Close Creek Rd. Overflow Pipe. Exacerbating the releases to the Conodoguinet Creek is that in 1962, the Creek Rd. manhole was installed with an overflow pipe leading directly to the creek. This has created a direct, and largely overlooked, channel to waters of the Commonwealth. This needs to be closed off immediately. Certified Operator. It is not enough for an employee who is the Certified Operator to consider himself as bearing no greater responsibility for environmental protection than any another employee. As a Certified Operator, that employee bears significant responsibilities by virtue of his license and the mandates of his license. The regulations governing Certified Operators say that among the tasks that may be imposed on a Certified Operator is the obligation of giving notice to DEP. We think it is more likely than not that this task was delegated to Mr. Klinger. A portion of the cause of the Boroughs failures to comply with DEPs regulatory requirements must fall on Mr. Klinger, the Boroughs Certified Operator, who did not live up to the requirements of the Borough and mandates of his license. The Certified Operator must take responsibility consistent with his license from DEP and the requirement of the Borough. Chain of Command/Reporting and Recordkeeping Protocol. The chain of command needs to be clarified and enforced. We believe that the Boroughs new Notice and Recordkeeping Protocol is an excellent first step in insuring that someone is in charge. It needs to be fully accepted and implemented by the Sewer Department and Public Works Department. Relationship between Management and the Sewer Dept. The difficult relationship between management and the Sewer Department is harmful to the Borough and exposes the Borough to potential additional liability. The issues between the Sewer Department and management need to be resolved, the sooner the better. Management responsibility. The Borough Manager, Mr. Kline, has employed a hands off style of management and largely left the Public Works Dept. to its own devices by assuming that it was working in a proper manner. At the same time, he holds the title of Director of Public Works. This style can be corrected (and may already have been corrected). The Manager needs to have a staff he can trust both to carry out their duties and who will accurately and timely report to him. Currently, he does not. Moving forward, he needs to have managers and employees or contractors that he can trust. He needs to be a better manger of the Public Works Department. While the Certified Operator bears responsibility for failing to make reports to DEP, or filing full and complete reports to management (prior to the new Reporting Protocol going into effect in February 2013), the Borough Manager cannot abdicate his responsibilities to ensure that significant environmental requirements have been upheld by the Borough. Ultimately, the Borough Manager needs to accept responsibility and be held responsible. As the Boroughs chief administrative executive, the Borough Manager bears ultimate responsibility. Council must decide if it continues to have trust that the Borough Manager can perform all of the responsibilities of his position. 6

 Alternatives and recommendations: Alternatives to improving the functioning of the Sewer Department and maintaining public faith that the system is being properly operated include: (1) Mandating that management and the Sewer Dept. collaborate; (2) Retention of a professional company that can maintain the sewer conveyance system and termination or reassignment of the Sewer Dept. employees; and (3) Termination of Mr. Klingers and Mr. Klines employment. o Our recommendation is that Camp Hill Borough immediately retain an outside company that is capable of operating and maintaining the sewer system. The company should not be affiliated with Gannett Fleming so that each are independent of the other. The system needs to be operated and maintained properly. Reports need to be made in a timely manner. It is important to restore confidence in Camp Hills sewer system both by residents and by DEP. This can only be done by bringing in a professional company that does not have any history with the Borough, that is independent, and that is accountable to the residents of the Borough for any failures. o Personnel decisions need to be made by Council. These decisions ought to be based on whether it has faith in the individuals involved to carry out their duties in the future.