December 22, 2019
If you have a business or residential property in Hamilton County that experiences flooding that includes sewer effluent, you may have a claim for repairs to damage, and retrofitting your property to prevent future flooding.
Master settlement with US EPA
In 2002, the US EPA, the State of Ohio, and others brought suit against Hamilton County and City of Cincinnati alleging that overflows of MSD’s sanitary sewer system violated the Clean Water Act and related Ohio laws and regulations. They challenged the capacity and pollution problems with MSD’s sewer system, including sewage overflows from MSD’s sanitary sewers, overflows from combined storm water and sanitary sewer lines, deficiencies at wastewater treatment plants, and backups of sewage into homeowners’ basements.
On December 3, 2003, a final settlement was reached with the Board of Commissioners of Hamilton County and City of Cincinnati. The case was pending in the U.S. District Court in the Southern District of Ohio. Under the settlement, Metropolitan Sewer District of Greater Cincinnati (MSD) agreed to bring its aging sewer system into compliance with the Clean Water Act.
Consent Decree creates Sewer Backup Program
In June 2004, the Court approved two consent decrees aimed at eliminating all sanitary sewer overflows. The Consent Decree established a comprehensive framework for the County and City to develop and implement a long-term plan for infrastructure improvements to address the capacity and pollution problems with MSD’s sewer system. The Consent Decree also required the County and City to implement programs to prevent basement backups, clean up backups when they occur, and reimburse residents for property damages for sewer backup events. This probram is referred to as the Sewer Back Up Program (“SBU”), formerly known as the Water in Basement Program, whereby aggrieved homeowners who have experienced backups to their Property emanating from MSD sewers can recover their damages.
There are multiple steps in the MSD claims process.
- First, a homeowner who has experienced a backup to their Property must report the same within 24 hours, either at (513) 352-4900 (24 hours/7 days a week) or online here.
- Second, that homeowner should fully document with photos and videos the backup, as well as all entry points, including sewer drains at the Property.
- Next, within 2 years of the date of the backup, a homeowner must complete and submit the Sewer Backup Claim Form available here.
MSD will conduct a technical evaluation and upon determination that MSD is responsible, assign the claim to a claims adjuster. Once the claims adjuster has completed its review, the proposed settlement is sent to MSD for legal review and once approved by MSD legal, a letter containing the settlement offer and release is sent to the Property owner, the Claimant. If the Claimant is in agreement with the settlement offer, he/she signs the release and returns it to MSD. If the claimant is not in agreement with the settlement offer, he or she may further discuss the amount with MSD or pursue the Review Process set forth by the Court, as set forth herein.
Review of decision by Federal Magistrate Judge
Claimants who are dissatisfied with MSD’s disposition of a claim under the SBU program may request review of the decision by the Magistrate Judge in Federal Court, whose decision is binding and not subject to any further judicial review. In accordance with the Consent Decree, Federal District Court case #C-1-02-107, the Claimant may file a Request for Review with the Federal Court in Cincinnati, Ohio. The Claimant should file that Request within 90 days with the Clerk’s Office of the Federal Court located in the Potter Stewart U.S. Courthouse, Room 103, 100 East 5th Street, Cincinnati, Ohio 45202. The Claimant may also call the court-appointed Ombudsman, the Legal Aid Society, at (513) 362-2801 for further information.
In determining the cause of an SBU, MSD must exercise its good faith reasonable engineering judgment and consider the following non-exclusive factors: amount of precipitation, property SBU history, condition of the sewer system in the neighborhood, results of a visual inspection of the neighborhood to look for signs of overland flooding, neighborhood SBU history, capacity of nearby public sewer lines, and topography. United States v. Bd. of Hamilton County Comm’rs, 2014 U.S. Dist. LEXIS 157434, *17-18 (S.D. Ohio Nov. 6, 2014).
Damages that can be recovered
Damages arising from basement backups for which MSD is responsible are limited to documented real and personal property. Under the Consent Decree, “[d]amages will be paid for losses to real and personal property that can be documented” and “[c]laimants will be asked to submit copies of any documents that they may have that substantiate the existence and/or extent of their damages.” (Doc. 131, Exh. 8 at 2-3). United States v. Bd. of Hamilton County Comm’rs,2014 U.S. Dist. LEXIS 37601, *27 (S.D. Ohio Mar. 20, 2014).
The Claims Process will only reimburse for damages arising from basement backups caused by inadequate capacity in MSD’s Sewer System or that are the result of MSD’s negligent maintenance, destruction, operation or upkeep of the Sewer System. United States v. Bd. of Hamilton County Comm’rs, 2014 U.S. Dist. LEXIS 37601, *22-23 (S.D. Ohio Mar. 20, 2014). Claimants seeking a review of the denial of an SBU claim bear the burden of proof of showing that the backup of water into their property was due to inadequate capacity in MSD’s sewer system (a sewer discharge) and not overland flooding.
Inadequate capacity versus overland flooding
However, Courts have found that there is nothing in the language of the Consent Decree that limits recovery where the evidence shows damages were concurrently caused by a combination of overland flooding emanating from MSD’s Sewer System and overland flooding not emanating from MSD’s Sewer System. The language of the Consent Decree does not require that SBU be the sole or greater cause of the damages sustained, or that damages should be apportioned where damages are caused by both SBU and overland flooding not emanating from MSD’s Sewer System. Under the terms of the Consent Decree, homeowners “who incur damages as a result of the backup of wastewater into buildings due to inadequate capacity in MSD’s Sewer System (both the combined and the sanitary portions) can recover those damages. . . .” United States v. Bd. of Hamilton Cnty. Comm’rs, 2016 U.S. Dist. LEXIS 46858, *10-11 (S.D. Ohio Mar. 29, 2016).
The Court has found that language of Consent Decree excluding overland flooding “not emanating from MSD’s Sewer System” necessarily contemplates circumstances where overland flooding in fact “emanates” from MSD’s Sewer System. Thus, where the public sewer discharges from the cover of the manhole and flows over ground and into a building, the terms of the Consent Decree cover any subsequent claim for damages. Accordingly, the Consent Decreedoes not bar claims for overland flooding which emanates from MSD’s Sewer System. United States v. Bd. of Hamilton County Comm’rs, 2014 U.S. Dist. LEXIS 37601, *23-24 (S.D. Ohio Mar. 20, 2014) The fact that overland flooding may occur and ultimately contribute to the lack of sewer capacity — resulting in a sewer surcharge does not exclude sewer backup as one cause of the damages sustained. The language of the Consent Decree does not require that SBU be the sole or greater cause of the damages sustained, or that damages should be apportioned where they are caused by both SBU and overland flooding not emanating from MSD’s sewer system. United States v. Bd. of Hamilton Cty. Comm’rs, 2017 U.S. Dist. LEXIS 79177, *19-20 (S.D. Ohio May 23, 2017).
If you have experienced a Sewer Back Up and would like assistance with the claims process or review of your claim in federal court, please contact Julie Gugino at 513-943-5669.