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How to submit public comments against the US Army Corps of Engineers' open-lake disposal plan.
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Public Comment "How To":Lake Erie & Toxic Sediment Disposal
March 24, 2014
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Nathan Johnson Attorney
Public Comment "How To":Lake Erie & Toxic Sediment Disposal
March 24, 2014
Ohio Environmental Council
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Lake Erie
OUR AUDIENCE
U.S. Army Corps of Engineers
Buffalo District
Open Lake Disposal
Practice is disfavored by most Great Lakes states.
Prohibited in Minnesota and Wisconsin.
Ohio EPA has long urged it be phased out.
By far, most occurs in Ohio.
NEPA
National Environmental Policy Act:
All federal agencies must evaluate the potential environmental impacts of their proposed “Major” actions.
Requires “close look” at environmental issues.
Does not require a particular end result – Death Star example.
NEPA
Before a project can proceed:Correct level of NEPA analysis must be completed; and
NEPA analysis must be done properly.
NEPA Documents
Environmental Impact Statement (EIS) Core requirement of NEPA
Environmental Assessment (EA) Determines whether EIS required
Finding of No Significant Impact (FONSI) Conclusion that EIS not required
The EA/FONSI
Finding of no significant impact and environmental assessment:
Open-lake placement of material dredged from Cleveland Harbor or federal navigational channels in the upper Cuyahoga River.
Bottom Line
NEPA must be satisfied before project can proceed.
Failure to satisfy the requirements of NEPA would legally bar the Corps from proceeding with open lake disposal.
EIS preparation is a lengthy process that often takes a year or longer.
Why Comment?
1. Inform the agency’s decision-making process;
2. Preserve standing for administrative and judicial appeals (i.e., preserve your right to go to court); and
3. Ensure specific issues are noted on the record – so as to avoid potential waiver of claims.
The “ASK”
Don’t Ask; Tell.
**This is a “Major Federal Action significantly affecting the quality of the human environment.”**
Corps must conduct a full-blown NEPA EIS evaluation.
CORPS Perspective
Corps is arguing that open-lake disposal isn’t significant, and therefore does not require an EIS.
“Other areas of Lake Erie have similar pollutant loads”
“10-20 increase in fish PCB bioaccumulation not significant”
FONSI
SIGNIFICANCE
CEQ Rules, Sec. 1508.27 Significantly.
Federal agencies are required to consider several factors when determining whether a proposed action is “Major” or “Significant”
Affect public health and safety?
The degree to which the proposed action affects public health or safety.
PAH load will increase
PCB bioaccumulation will increase
DDT bioaccumulation will increase
Affect public health and safety?
Ohio EPA has already found that:
Open lake disposal of the Cuyahoga River Channel sediments would increase levels of pollutants such as PCBs, benzo[a]pyrene, DDT, and DDE in Cleveland Harbor;
Open lake disposal would substantially increase fish tissue PCB contamination, which already exceeds human health thresholds and wildlife protection thresholds; and that
The contaminants in the harbor sediment would pose an unacceptable risk of toxicity to aquatic organisms and human, wildlife, and avian consumers of fish – and would further exacerbate the persistent economic effects of Lake Erie fish consumption advisories.
Affect public health and safety?
The degree to which the proposed action affects public health or safety.
City of Cleveland Water Intakes – Mayor Frank Jackson”
“As the regional water provider to 1.4 million people spread across parts of five counties, the Cleveland Division of Water takes its responsibility to deliver a reliable supply of safe drinking water seriously. Over the more than 150 year history of the organization, the Cleveland Division of Water has moved their water intakes further into Lake Erie to avoid the negative effects of the riverbed. The USACE plan to dispose of dredged river materials in the open Lake counteracts those efforts and brings the riverbed to four intakes that feed water to our water treatment plants.”
Controversy?
The degree to which the effects on the quality of the human environment are likely to be highly controversial.
Opposition to Open Lake Disposal plan from (amongst others): Cleveland Mayor Cleveland City Council Cleveland Water Cuyahoga County Executive Edward FitzGerald Cleveland-Cuyahoga County Port Authority Congresswoman Fudge
Controversy?
Practice is disfavored by most Great Lakes states.
Prohibited in Minnesota and Wisconsin.
Ohio EPA has long urged it be phased out.
Uncertainty?
The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
Ohio EPA:
“The methodology used by [the Corps] was contrary to the best available science and guidance – due to, inter alia, the use of contaminated reference sites and the failure to conduct chronic toxicity evaluations[.]”
Precedent?
The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
Look at Toledo From temporary solution to two Empire State Buildings per
year
Huge change for Cleveland Corps states intention to open-lake-dispose majority of
sediments from here forward.
Cumulative Impacts?
Whether the action is related to other actions with individually insignificant but cumulatively significant impacts.
Failure to look at bigger, multi-year picture: Corps completely fails to consider what a new regime of open lake disposal will look like; what effects it will have. What will annual open lake disposal do to the Lake Erie environment near Cleveland?
Corps doesn’t ask, let alone answer this question.
Violate any other laws?
Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.
Would cause or contribute to significant degradation of waters of the United States, thereby violating CWA.
Violates state WQSs.
Conclusion
Tell the Corps: “You must prepare an EIS.”
The Corps’ proposal to dispose of dredged Cleveland Harbor sediments is a major federal action that would significantly effect the human environment.
COMMENTS DUE WEDNESDAY, MARCH 26
Where do I submit comments?
U.S. Army Corps of Engineers,
Buffalo District
Questions?
Feel Free to Contact Me:
