THE CUYAHOGA RIVER MAKES NEWS AGAIN: A POSTSCRIPT

Posted on May 31, 2017 by Michael Hardy

On May 11, 2017, I published a blog piece about the efforts of the Army Corps of Engineers to circumvent the State of Ohio’s “anti-degradation” water quality rules for the disposal of contaminated sediments from portions of the Cleveland Harbor and Shipping Channel.  Instead of dry land disposal in Confined Disposal Facilities (“CDF”), the Corp cited its own “Federal Standard” that justified, in its view, “open lake disposal” in Lake Erie at considerable cost savings.  The United States District Court ruled on May 5, 2017 that action was “arbitrary and capricious” under the Administrative Procedure Act.  The District Court showed no deference to the Corp’s “scientific” efforts to create its own rules in contravention to Ohio’s water quality standards.

The controversy arose in the context of the disposal of the contaminated sediments in the shipping channel of the Cuyahoga River, which makes up the last six miles of the River ( the northern end spilling into Lake Erie).  The River travels approximately 85 miles in total and drains nearly 815 square miles in four counties.  Just several miles south of the shipping channel is the 33,000 square acre Cuyahoga Valley National Park, with a number of significant tributaries feeding the River.  These upstream waters provide significant sand and gravel loadings to the northern reach of the River.

Recognizing that it could not afford to build a new $150,000,000 CFD, the Port of Cleveland looked for ways to reduce the sediment loading upstream of the navigation channel.  Adapting innovative “green” technology, the first of its kind at a port like Cleveland’s, the Port installed a “bed load interceptor” machine in the water about five miles upstream of the Shipping Channel that captures the sediment and extracts the clean sand for disposal into onsite piles.  With less sediment coming downriver, the Port hopes to extend the life of the existing CDF for another 30 years. The collected sand has a financial value for use in composting, construction, landscaping and road fill.  Here is a link to a recent The Plain Dealer(Cleveland.com) article that describes the technology, as well as its costs and resultant savings in dredging/disposal costs, and that depicts the process and the location of the interceptor.

The Port of Cleveland’s success with the interceptor has prompted other ports to examine the application of the technology to their locations, including a port on Lake Superior and sites in the Mississippi River delta.

The Cuyahoga River Makes News Again

Posted on May 11, 2017 by Michael Hardy

To many environmental law veterans, the name of the Cuyahoga River triggers memories.   The 1969 fire on that River galvanized major reforms to the water pollution laws of the United States.

As I sit in my 36th floor office and look out the windows in several directions, I can see most of the upper Cuyahoga River course through the “Industrial Flats” as it winds from the Cleveland Harbor north on Lake Erie to the large Arcelor Mittal steel plant nearly six miles downriver.  Known as the “crooked river” by Indian lore, it has many oxbows and switchbacks with colorful names like “Collision Bend” and “Irishtown Flats”.  Home to rowing teams, large tugs, iron ore freighters, and sand and gravel barges, it is a busy river requiring constant upkeep through dredging.

The Cuyahoga River has made remarkable progress since the 1969 fire, with many targeting the fifty-year anniversary of the fire for the removal of its “impaired” classification.  But the River still suffers from years of industrial and municipal sewage disposal.  Although a variety of fish have returned, it should not be surprising to know that slightly elevated PCBs remain in the sediments, a fact that complicates the dredging and disposal of the spoils.  Therein lies the newest chapter in the River’s history.

Congress has funded the dredging of the Cuyahoga River for nearly 40 years and, in 2015, allocated resources to the Army Corps of Engineers (Corps) for that year.  Accordingly, the Corps filed an application with the Ohio Environmental Protection Agency (OEPA) for a water quality certification under Section 401 of the Clean Water Act before commencement of the dredging project.  The OEPA, concerned over elevated levels of PCBs in some of the dredging spoils, authorized the dredging to proceed, provided the Corps disposed of all the dredged material in on-site “confined disposal facilities” (CDFs).  Based on sampling and analysis it conducted, the Corps agreed to utilize a CDF for the sediments dredged from the Cleveland Harbor, but objected to the required use of a CDF for the spoils coming from the “Upper Channel” of the River.  Calculating what it called a “Federal Standard” to identify less costly alternatives, the Corps proposed instead to use “open lake disposal” for those materials, which immediately drew the opposition of the OEPA and Ohio Department of Natural Resources.  The Corps argued that the use of a CDF for those spoils would add nearly $1,300,000 to the cost of the project.  The Court wanted the “Federal Standard” to override Ohio’s anti-degradation water quality rules and other initiatives designed to improve the health of Lake Erie.  Instead of an administrative appeal of the OEPA conditional certification, the Corps gave the State an ultimatum – either find a “non-federal source” for the added costs or forfeit the Congressionally authorized dredging.  Because of the potential dire economic consequences to the steel mill and other businesses, the State sued the Corps and obtained a preliminary injunction.  The District Court sided with the State and ordered the dredging to commence, with the responsibility for the incremental costs to be determined in subsequent proceedings.

On May 5, 2017, the District Court issued a 52-page Opinion finding that the Corps’ actions were “arbitrary and capricious” under the Administrative Procedure Act. State of Ohio v. The United States Army Corps of Engineers, U.S.D.C. N.D.Ohio Case No. 1:15 – CV 629.  Among other things, the Court found that the Corps’ elevation of its so-called “Federal Standard” to supersede duly promulgated water quality standards of Ohio exceeded the Corps’ authority. The Corps could not make up its own rules to evade its obligations to comply with properly adopted environmental standards or to fulfill Congressional mandates to dredge the entirety of the Cuyahoga navigation channel and use a CDF to manage the spoils.  Accordingly, the District Court ruled that the Corps must absorb the added costs of the on-land CDF disposal.