FreshWater Accountability Project v. United States Army Corps of Eng'rs

• Decision Date: 20 September 2022
• Docket Number: 2:20-cv-6168
• Parties: FRESHWATER ACCOUNTABILITY PROJECT, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

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FRESHWATER ACCOUNTABILITY PROJECT, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

No. 2:20-cv-6168

United States District Court, S.D. Ohio, Eastern Division

September 20, 2022

Elizabeth P. Deavers Magistrate Judge

OPINION AND ORDER

EDMUND A. SARGUS, JR. UNITED STATES DISTRICT JUDGE

This matter arises on Plaintiff FreshWater Accountability Project's (“Plaintiff”) Partial Motion for Summary Judgment (ECF No. 40), Defendant United States Army Corps of Engineers and Colonel Jayson Putnam's (collectively, “the Corps”) Motion for Summary Judgment (ECF No. 46), and Intervenor Defendant DeepRock Disposal Solutions, LLC's (“DeepRock”) (together with the Corps, “Defendants”) Motion for Summary Judgment (ECF No. 45). All parties seek judgment as a matter of law on the administrative record.

For the reasons stated herein, the Court DENIES Plaintiff's Partial Motion for Summary Judgment (ECF No 40), and GRANTS Defendants' cross-motions for summary judgment in full. (ECF Nos. 45 46.)

I.

A. March 2020: DeepRock Applies for a § 10 Permit

In 1932, the National Refining Company built a barge dock on an embankment of the Ohio River near Marietta, Ohio. (R. at 1410.) Numerous oil companies would come to use the dock to transport their products in the decades to come. (R. at 1410, 4169-71.) By 2020, however, the dock sat unused. Then came DeepRock. (R. at 4-7.) At that point, the company-which specializes in the storage and disposal of oil wastewater-had both purchased the dock and installed numerous, inland waste storage facilities (known as “Class II injection wells”) across the road abutting it. (R. at 423, 4175, 4345.)

Initially, DeepRock relied on trucks to transport its “Class II wastewater” (or “water associated with hydraulic fracturing”) to its wells, usually at great distance (i.e., “250-300 miles per round trip”) (R. at 424.) By March 2020, however, the company decided to pursue a new, barge-based method of transporting its waste product. (Id.) And to offload that product, it sought to “reactivate[]” its dock, which was already equipped with a pipeline that could transfer wastewater to the company's injection wells. (R. at 6, 425.)

DeepRock, however, could not put its plan into effect without, among other things, gaining approval from the Corps, which is tasked under § 10 of the Rivers and Harbors Act (“RHA”) with regulating “structures or work” which “affect[] [the] navigable waters of the United States.” 33 C.F.R. § 322.1; see 33 U.S.C. § 403. Accordingly, on March 29, 2020, DeepRock applied for a “§ 10” permit. (R. at 6.) As it noted in its application, the company specifically sought to “reactivate an existing commercial river dock (formerly identified / operated as Itapco) for the transfer of traditional well waste (wastewater) to existing upland storage tanks.” (Id.) DeepRock continued:

The commercial river dock is pre-existing and will not require any construction, repair and/or dredging. The existing commercial river dock consists of a barge dock with a center platform and two (2) dolphins to accommodate a barge (barge size up to 297-feet by 54-feet). The river dock consists of an existing crane capable of handling hoses for the purposes of connecting dock pipe valves to the barge piping valves. A 90-foot walkway / pipeway extends from the dock to the top of the river bank. The existing two (2) interlocking piling dolphins . . . extend 150-feet upstream and 75-feet downstream from the dock for mooring of the tank barge(s) . . . The overall facility will extend approximately 241 linear feet along the shoreline.

(Id.) DeepRock also highlighted that it had either obtained or intended to pursue various permits from other state and federal agencies to facilitate its “project,” including: (1) a 401 Water Quality Certification from the Ohio Environmental Protection Agency (“OEPA”); (2) a “modification of [an] existing Chiefs Order for Class II injection well facility” by the Ohio Department of Natural Resources (“ODNR”); and (3) an “approval to operate under 33 CFR 105.400-415” from the United States Coast Guard (the “U.S. Coast Guard” or “USCG”). (Id.)

Part of DeepRock's § 10 application required the company to disclose “any species listed as endangered or threatened under the Endangered Species Act that might be affected by” its proposed activity. (R. at 7.) To that end, the company noted its barge facility was “located on the Ohio River and within a known or historic range” of several endangered mussel species. (Id.) It reiterated, however, that (1) its reactivation of the facility would “not require any construction, repair, and/or dredging,” and (2) it had already received written assurance from the United States Fish and Wildlife Service (“U.S. Fish and Wildlife Service” or “USFWS”) that its proposed project would have “no adverse impact” on any endangered or threatened species. (Id.) As proof, DeepRock attached a copy of the USFWS' confirmation to its application. (R. 7, 72.)

B. April 2020 - August 2020: The Corps Disseminates Two Public Notices and Holds a Virtual Public Meeting

i. The Corps Issues Public Notice of DeepRock's § 10 Application

On April 7, 2020, the Corps issued Public Notice No. LRH-2020-293-OHR (the “Public Notice”)-the first of several public announcements regarding DeepRock's § 10 application. (R. at 4270-77.) Among other things, the Public Notice (1) described the location of DeepRock's barge loading dock, as well as the activity for which the company sought § 10 approval, (2) confirmed that DeepRock's proposal was not subject to § 404 of the Clean Water Act, 33 U.S.C. § 1344, as it “would not involve the discharge of dredged and/or fill material into waters of the United States,” (3) discussed DeepRock's intended efforts to avoid and minimize its “impact” on the Ohio River- specifically, by implementing a “[s]tormwater management plan[]”-and (4) noted that the “proposed project [was] located within the known or historic range” of several endangered bats and mussels. (R. at 4270-71.) Notwithstanding the latter acknowledgement, the Corps concluded DeepRock's proposed activity “would have no [e]ffect” on the endangered bats and was “not likely” to have any adverse impact on surrounding mussel populations. (R. at 4271.) This was so, the agency reasoned, as the barge's “reactivation” would not involve the removal of any nearby foliage or require any dredging. (R. at 4271.) Nevertheless, the Corps still sought a “concurrence from the [USFWS]” as to the loading dock's potential impact on surrounding endangered or threatened species. (Id.)

The Corps ended its Public Notice by confirming that its review process would “be based on an evaluation of the probable impacts, including cumulative impacts, of [DeepRock's] proposed activity on the public interest” and would “reflect the national concern for both the protection and utilization of important resources.” (Id.) To facilitate that analysis, the agency solicited comments “from the public, Federal, state and local agencies and officials, Indian Tribes and other interested parties,” all to be submitted within thirty days (i.e., by May 6, 2020). (R. at 4270, 4272.) These comments, the Corps added, would be used to assess the “impacts of the proposed activity,” as well as “to determine the need for a public hearing and . . . the overall public interest of the proposed activity.” (R. at 4272.)

ii. The Public Weighs In

By the end of the thirty-day comment period, the Corps received forty-three public comments in relation to DeepRock's § 10 application and one “Concerned Citizens” petition with 493 signatures. (R. at 4175.) Of the comments the agency received, twenty-four requested a formal public hearing, while twenty-six requested an extension of the comment period. (R. at 4279.) Four individuals and the signatories of the “Concerned Citizens” petition requested or raised the topic of permit denial. (Id.) Numerous others raised on an array of economic, ecologic, and environmental concerns with DeepRock's use of the barge loading dock, including those related to “spill prevention and emergency response, radiation protection, chemical analysis/testing of cargo, quantities, origin, and types of waste to be received . . . noise, flooding . . . and drinking water and aquifers.”^[1] (R. at 4180-81.) The Corps also received six comment letters from various “state agencies and Tribes”-including the USFW's Ohio field office and the Ohio State Historic Preservation Office-none of which objected to, or otherwise raised a specific concern with, DeepRock's permit application.^[2] (R. at 4175-80.)

iii. The Corps Declines to Extend the Public Comment Period

On June 17, 2020, the Corps announced via public memorandum (the “June 17 Memo”) that the comment period for DeepRock's § 10 application would not be extended. (R. at 904-19.) Before reaching this decision, the agency offered a preliminary evaluation of the public comments it had thus far received. (Id.) Therein, the Corps noted, among other things, that:

• “[t]he occurrence of spill events is not within the purview of the [its] regulatory authority,” as “[t]he USCG is responsible for navigational safety on the Ohio River, which includes both industrial and public safety.” (R. at 909.)

• Under USCG rules, DeepRock “would be required to implement and maintain a[n] [approved] Facility Security Assessment and Facility Response Plan . . . which [would] include security procedures that prevent offloading operations under severe weather and river conditions such as flooding.” (R. at 908.) Should DeepRock's § 10 application be approved, the agency added, DeepRock would be “additionally” bound to submit for approval a “Facility Operating Plan (FOP)” that “addresse[d]

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