RUSS, City of Mt. Union square off in court regarding system shutdown

BY BROOKS TAYLOR

Mt. Pleasant News

Would the discontinuance of service to delinquent sewer customers in Mt. Union cause irreparable harm to the community?

That was the question District Court Judge Mark Kruse posed on Friday, March 18, at the beginning of a three-hour hearing in Henry County District Court between the City of Mt. Union and the Regional Utility Service Systems (RUSS).

Kruse placed the burden of proof on Mt. Union in answering the question.

Mt. Union was granted a temporary injunction on March 3, preventing RUSS from installing shut-off valves on sewer lines of delinquent users. The March 18 hearing was on whether the injunction should continue.

No ruling was made by Kruse following the oral arguments on Friday; instead, he requested both sides to file written briefs with the court by Friday, March 25. He will review the briefs and then make a ruling, although he did not list a timetable for the ruling.

The judge did not tip his hand regarding his stance, although he did say at the conclusion of the hearing, ?If people don?t pay their water, electricity, natural gas or telephone bills, they get cut off.?

New London attorney Steve Ort, who represented the City of Mt. Union, focused his arguments on RUSS? failure to publish resolutions, listing the procedures for shut-off valves and the lack of Mt. Union representation on the RUSS? Board of Directors. Publication of the resolutions, Ort said, is required by Iowa Code before they can become law.

Three individuals testified during the hearing. Mt. Union Mayor John Marek and RUSS Executive Director Bruce Hudson each were on the stand for about an hour, and former Mt. Union City Clerk Linda Johnson, briefly testified on behalf of RUSS.

RUSS has passed several resolutions in the past several months regarding shut-off procedures, the last one during the RUSS board?s meeting on March 9. Copies of that resolution were sent to Mt. Union residents on March 11, Hudson said.

In that resolution, RUSS says it would discontinue service to users whose account is 60 days past due and if the city has failed to indemnify and reimburse RUSS for the delinquent amount. The resolution also gives the user the right for a hearing before the RUSS executive board.

If the outstanding balance is not paid, the resolution gives RUSS the power to install a shut-off valve on the individual?s sewer line. If the outstanding balance is then paid, the individual user still would be charged for excavation to install the shut-off valve, the shut-off valve and the cost of activating the shut-off valve. The resolution also gives RUSS the power to collect any other costs, which the utility incurred, related to terminating or reinstating service to the user.

Hudson said the shut-off valve costs under $100, but installing it could run between $700-$1,000, depending on the amount of excavation work required to install the valve.

RUSS, which owns the sewage system in Mt. Union, serves between 50-54 households in Mt. Union, Hudson said. Ten Mt. Union property owners received notices early last week that their account was 60 days past due, he noted. Four users have not paid a penny for service since the system went on line in August 2010, Hudson said. Their bills exceed $4,000.

?Since the notices were sent out (the first notices were sent in late February), RUSS has collected money from eight or nine delinquent users,? Hudson said. The money received has varied, he continued. Some have paid the full amount and others a portion of the bill.

Marek, who claimed he was an environmental quartermaster in the U.S. Army Reserves, said he was told by Travis Johnson, community health director, that shutting off a sewer line to a house would present environmental and health issues within the household, which would impact neighboring households.

Johnson, however, remembers the conversation differently. He told The News this morning that a home ?without a functioning septic system of some sort would present an unhealthy situation.? He said he did not recall mentioning there being an impact on neighboring homes.

?As soon as the system is shutoff, the environmental impact would begin,? Marek said. ?Without sewer service, the tax base would go down and property values would greatly decrease,? he continued.

Marek said he has talked with the Iowa Department of Natural Resources (DNR) about the legality of shut-off valves and was told that the DNR had no jurisdiction at individual sites.

When the system went online in 2010, monthly sewer rates were $35, Marek said. Since that time, the rates have gradually increased, largely because of delinquent accounts. Monthly rates were upped to $75.85 in July of 2015, and then to $150 in December.

Under the current rate structure, Marek said some people simply couldn?t afford to pay. ?We have a lot of residents living under the poverty level,? the mayor said, ?and 20 percent of the households can?t afford the (current) sewer rates.?

The recent resolution requires the City of Mt. Union to reimburse RUSS for the delinquent amount, but Ort said RUSS ?has never said how that reimbursement would be set up.?

Ort asked Hudson if the RUSS resolutions concerning Mt. Union had been published, and Hudson said the last two resolutions (regarding shut-off procedures) had not been published and was unsure if any resolutions prior to his tenure at RUSS (just over five years) had been published.

In addition, Ort contended that a rate increase passed by ordinance or resolution had to be published, ?and RUSS has not published any ordinance or resolution for a rate increase.?

Hudson answered that Mt. Union customers had been provided copies of the resolutions and rate increases, either via mail or posting.

Mt. Union resident Linda Johnson testified that she understood the reason for rate increases because of delinquent accounts and claimed the city has not put pressure on non-paying users.

Both attorneys afterward said they felt they made the arguments necessary to prove their points.

?We made the points we needed to make,? Ort said. ?I was pleased with our argument that the RUSS rate structure is not appropriate. While this has been a noble endeavor by RUSS, some things need to be fixed. I don?t think the whole setup was structured properly in the first place. The 28E agreement is defective because it does not allow participation by Mt. Union on the RUSS board.?

Lucas Helling, RUSS attorney, said much of the RUSS? position would be in the briefs to be filed. ?Mt. Union had an opportunity for a fair hearing, and I don?t feel today?s arguments advanced to the city?s case for an injunction.?