Ohio v. U.S. Army Corps of Eng'rs

• Decision Date: 04 May 2017
• Docket Number: CASE NO. 1:15–CV–679
• Citation: 259 F.Supp.3d 732
• Parties: State of OHIO, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

259 F.Supp.3d 732

State of OHIO, Plaintiff,

v.UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

CASE NO. 1:15–CV–679

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

Signed May 4, 2017

Filed May 5, 2017

Aaron S. Farmer, Amy C. Factor, David E. Emerman, Janean R. Weber, Office of the Attorney General, Dale T. Vitale, Office of the Attorney General—Environmental Enforcement State of Ohio, Richard N. Coglianese, Office of the Attorney General—Constitutional Offices State of Ohio, Columbus, OH, for Plaintiff.

Alan David Greenberg, U.S. Department of Justice, Environment & Natural Resources Division, Denver, CO, Benjamin R. Carlisle, Reuben S. Schifman, Stacey Bosshardt, U.S. Department of Justice—Environment/Natural Resources, Washington, DC, Erin E. Brizius, Office of the U.S. Attorney, Cleveland, OH, David Augustin Ruiz, AUSA, Northern District of Ohio, for Defendants.

MEMORANDUM OPINION AND ORDER

DONALD C. NUGENT, United States District Judge

This case is before the Court on the parties' Cross Motions for Summary Judgment. (ECF # 101, 104). Plaintiff, State of Ohio and Intervening Plaintiff, Cleveland–Cuyahoga County Port Authority (collectively "Plaintiff"), filed a Motion for Summary Judgment asking this Court to order the United States Army Corps of Engineers complete the entire 2015 Cleveland Harbor Dredging Project, including the Upper Channel, and to bear the full cost for disposing of all sediment from the Project in a confined disposal facility, in compliance with the Ohio Environmental Protection Agency's ("OEPA") water quality certification conditions. (ECF # 101). Amicus Curiae briefs supporting this request were filed by ArcelorMittal Cleveland LLC, and Cuyahoga County. (ECF # 112, 118).

Defendants, United States Army Corps of Engineers, John M. McHugh, Jo–Ellen Darcy, Thomas P. Bostick, Richard G. Kaiser, and Karl D. Jansen ("Defendant")¹ filed a Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. (ECF # 104). Plaintiff filed a combined Reply brief and Opposition to the Defendant's Cross Motion (ECF # 110), and Defendant filed its own Reply. (ECF # 115). The issue is now ripe for determination.

BACKGROUND ²

The United States Army Corps of Engineers ("the Corps") is an agency of the federal government that is supposed to "provide[ ] safe, reliable, efficient, and environmentally sustainable waterborne transportation systems (channels, harbors, and waterways) for movement of commerce, national security needs, and recreation."³ Specific to this action, the Corps is required to expedite the operations and maintenance, including dredging, of the navigation features of the Great Lakes in order to support commercial navigation. 33 U.S.C. § 426o –2. One way the Corps maintains navigational channels is by removing sediment and other material that has accumulated at the bottom of the bodies of water. This process is called "dredging." Dredging is used to maintain the depth of rivers and channels to enhance their navigability.

Dredging is necessary to maintain the depth of the waterways and allow sufficient clearance for large cargo ships to navigate along the Cuyahoga River in an area known as the Cleveland Harbor Federal Navigational Channel ("Cleveland Harbor"). The Cleveland Harbor consists of three sections of water: 5.5 miles of shoreline enclosed by breakwater structures; 5.8 miles of the lower Cuyahoga River; and, 1 mile of the Old River. (ECF # 13–2, p. 2). The Old River is also known as the Cuyahoga Navigational Channel ("the Upper Channel"), and is sometimes referred to by the parties as the "sixth mile."

Several industrial facilities are served by the commercial ships traversing the Cleveland Harbor. One such facility is ArcelorMittal Cleveland, which is one of the largest and most productive steel mills in the world. (ECF 13–31, ¶ 5).⁴ This plant employs 1,900 people and has an annual raw steel production capacity of 3.8 million tons. (Id. at ¶¶ 4 and 5). Sixty percent of the steel produced from ArcelorMittal Cleveland is used in the State of Ohio for construction and by Ohio manufacturers. (Id. at ¶ 5). If appropriate dredging of the waterways does not occur, and commercial vessels are not able to safely traverse the waters, ArcelorMittal Cleveland and other commercial entities would face significant threats to the continuation of their business and all of the entities relying on the steel produced in that plant could suffer a significant loss of resources.

The importance of dredging this section of the Cleveland Harbor, and the severe economic consequences that would result if dredging were not routinely accomplished have been recognized by the Corps in multiple written documents. (AR0004592; AR0005054; AR–SUPP0101835 (April 2014 Letter from Corps District Commander Owen J. Beaudoin); AR–SUPP0128557–58 (March 2014 Corps Issue paper)).⁵ In fact, the Corps stated in its 2015 application for a permit under Section 401 of the Clean Water Act ("CWA") that if dredging did not occur:

[t]he large industrial base that depends on the harbor to transport commodities would no longer be able to do so cost-effectively. The harbor would no longer be a viable alternative for the transportation of goods. This would negatively impact the annual $1.7 billion in direct revenue; over 15,000 direct, indirect, and induced jobs; and $1 billion in personal income generated by the continued viability of the Harbor. Losses of between one and two feet of channel depths would result in increased transportation cost between $2.3 million and $5.2 million annually.

(AR–SUPP0110077: Corps' Application for 401 Permit).

Congress has provided the Corps with authorization and funding to dredge the Cleveland Harbor annually since the CWA was enacted approximately forty years ago. (AR0004089; ECF # 104–1 at PageID 9481; ECF # 101–1 at PageID 9372). Again in 2015, Congress authorized the Corps to dredge the Cleveland Harbor and allocated funds for the dredging and disposal of sediment and other dredging materials ("sediment"). The Congressional allocation for 2015 anticipated disposing of the sediment in a confined disposal facility ("CDF").⁶ (AR–SUPP1086688). The 2015 dredging project was originally scheduled to begin on or after May 15, 2015.

In preparation for the 2015 dredging project, the Corps applied for an Ohio water quality certification ("WQC") pursuant to Section 401 of the CWA, 33 U.S.C. §§ 1341. This certification is required for projects that could impact State water quality, including through the disposal of dredged sediment. (ECF # 13, p. 17). During the application process, the Corps performed an analysis of the sediment in various sections of the Cleveland Harbor using various testing methods. (AR0003618–19; AR0003629; AR0000065, 75, 137; AR0000608–09). The Corps does not dispute that carcinogenic toxins—specifically polychlorinated biphenyls ("PCBs")—are present in the sediment from the Upper Channel. In fact, during its evaluation process, it found that the PCB levels in the sediment were of concern and merited "investigation through bioaccumulation testing."

(AR0003629). The bioaccumulation testing performed by the Corps concluded that two thirds of the sediment from the Upper Channel showed no statistical increase in PCB bioaccumulation when compared to exposure from the proposed disposal site,⁷ (AR0005089; AR0003637, 3706–07; AR0003809), and that one third did show a statistical increase in bioaccumulation compared to this site. (AR0005089).

Using the results of the sediment analysis and considering the cost of various sediment disposal methods, the Corps calculated what it calls the "Federal Standard" for sediment disposal from the Cleveland Harbor. The Federal Standard is supposed to identify "the dredged material disposal alternatives ... which represents the least costly alternatives consistent with sound engineering practices, which meet the environmental standards established by the Section 404(b)(1) evaluation process or ocean dumping criteria." 33 C.F.R. § 335.7.

The Corps concluded that sediment dredged from most of the Cleveland Harbor should be disposed of in a CDF. However, the Corps decided that open-lake placement of the sediment from the entire Upper Channel would be appropriate and would not impact the environment "in light of existing PCB contamination and bioaccumulation levels at the proposed disposal site." (ECF # 104–1, at PageID 9478; AR0003639; see also, AR0005050–41, 5080, 5088, 5295). Defendant estimated that open-lake placement of this portion of the Cleveland Harbor sediment was the least costly alternative, and would save the Corps approximately $1,283,300 over the cost of CDF disposal. (ECF # 25).

On March 27, 2015, the Director of the OEPA wrote to the Assistant Secretary of the Army for Civil Works requesting that she "exercise [her] discretion ... pursuant to [her] authority under 33 C.F.R. § 337.2(b)(3) and 33 C.F.R. § 337.8 [to] agree [ ] to place the material in ... [CDFs] at full federal expense." (AR–SUPP0437660). The Assistant Secretary replied that she was "not authorized under 33 C.F.R. § 337.2 to use Federal funds to place material in a manner that is inconsistent with the Federal Standard determination." (AR–SUPP000001).

On March 31, 2015, the State approved the water quality certification request for dredging the entire Cleveland Harbor, but included a condition requiring that all dredged materials from the entire length of the Cleveland Harbor, including the sediment from the Upper Channel, be disposed of in a CDF. The OEPA and the Ohio Department of Natural Resources (collectively "the State") declined to certify any discharge into the open waters of Lake Erie based on its determination that the Upper Channel sediment contains PCBs. (AR0005819–5823). Rather than appeal or otherwise administratively challenge the disposal requirements contained in the State's WQC,⁸ the Corps declared that it would not bear the cost of CDF...