Posted on May 11, 2017 by Michael Hardy
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.