How to submit public comments against the US Army Corps of Engineers' open-lake disposal plan.

1. Public Comment "How To":
Lake Erie & Toxic Sediment
Disposal
March 24, 2014
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2. Nathan Johnson
Attorney
NJohnson@theOEC.org
Public Comment "How To":
Lake Erie & Toxic Sediment
Disposal
March 24, 2014

3. Ohio Environmental Council
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4. Lake Erie

8. OUR AUDIENCE
U.S. Army Corps of Engineers
Buffalo District

10. 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.

15. 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.

17. NEPA
Before a project can proceed:
Correct level of NEPA analysis must be completed; and
NEPA analysis must be done properly.

18. 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

19. 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.

20. 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.

21. 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.

22. 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.

23. 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”

24. FONSI

26. 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”

27. 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

28. 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.

31. 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.”

33. 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

34. Controversy?
Practice is disfavored by most Great Lakes
states.
Prohibited in Minnesota and Wisconsin.
Ohio EPA has long urged it be phased out.

35. 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[.]”

36. 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.

37. 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.

38. 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.

39. 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.

41. COMMENTS DUE WEDNESDAY,
MARCH 26
Where do I submit
comments?
U.S. Army Corps of
Engineers,
Buffalo District
ClevelandEA@usace.army.
mil

42. Questions?
Feel Free to
Contact Me:
Njohnson@theoec.o
rg