Beacon Journal staff writer
A proposed consent decree to resolve Akron's overflowing sewers is dead.
U.S. District Judge John Adams, in a 47-page decision filed Thursday, rejected the plan the city of Akron, the U.S. Justice Department and the Ohio Attorney General's Office had supported.
Adams' decision might be the first time a federal judge rejected a consent decree on combined sewers that came to the court with support from all parties, legal observers said.
The decision will result in a three-part civil trial, starting May 31 before Adams, that will delay implementation of any sewer remedies and will result in hefty legal bills for all parties.
The first trial, expected to last about three weeks, concerns whether Akron is guilty of violating the federal Clean Water Act with its 34 remaining sewers that overflow after heavy rain or snow melts and pollute the Cuyahoga and Little Cuyahoga rivers and the Ohio & Erie Canal with storm water mixed with raw sewage.
Up to two billion gallons of untreated or partially treated sewage annually end up in local waterways from Akron's combined sewer overflows or CSOs.
Remedy and penalty trials would follow. Appeals are possible.
According to Adams, the upcoming litigation will be ''lengthy, costly and contested.''
Adams' ruling was not unexpected. On Jan. 5, he said from the bench the agreement troubled him because the sewer problems were polluting the Cuyahoga River in the Cuyahoga Valley National Park and because he wanted the sewer cleanup completed far more quickly than the proposal outlined.
The city of Akron is ''very disappointed'' by the ruling, city Law Director Cheri Cunningham said.
Reviewing the order
Akron intends to appeal Adams' ruling to the U.S. Sixth Circuit Court of Appeals in Cincinnati, she said, and hopes the U.S. Justice Department and the state Attorney General's Office will join in that appeal.
Akron was surprised that Adams apparently feels he knows better than the federal, state and local professionals involved in the case, Cunningham said.
The Justice Department was aware of Adams' ruling, and its attorneys are reviewing the order, spokesman Wyn Hornbuckle said in Washington, D.C.
Adams' decision left Elaine Marsh, a spokeswoman for the Akron-based Friends of the Crooked River, a grass-roots group devoted to the Cuyahoga River, sad and disappointed.
''I am heartbroken for the river and for the system that seems so confused that we can't get this problem fixed,'' she said. ''This will mean even more delays in getting started on work to repair Akron's combined sewer overflows. . . . It's incredible that this has been going on for nearly 20 years and we have so little to show it. . . . I don't know who is at fault, but the river is the one that will continue to suffer.''
Timeline an issue
Adams' ruling also ends continuing efforts by Akron and the federal and state governments to negotiate remaining differences. As recently as March 11, the agencies urged Adams to approve the consent decree or at least postpone a decision for 30 days to allow more negotiations.
In his ruling, Adams said the proposed consent decree is ''not fair, reasonable, adequate and in the public's best interest.''
The timeline in that document is ''too lengthy, too uncertain and too dependent upon future agreement amongst the parties,'' Adams wrote.
He decried the fact the consent degree would give Akron 18 more years to solve the sewer problem, while EPA records indicate the cleanup could be done within 10 to 11 years.
There is no evidence that 18 more years is ''reasonable or necessary,'' Adams wrote.
Adams called the EPA's testimony that Akron could afford such sewer work more credible than the city's testimony that it cannot afford $1.2 billion the price tag if no overflows are permitted.
Akron failed to prove that it needs 18 more years because that would make the sewer project more affordable and the city could use income-tax funds, not just sewer funds, for the needed CSO work, the judge said.
The two sides already have negotiated for nine years, and the case was likely to return to court repeatedly to resolve differences if this consent decree had been approved, Adams said.
Resolving those differences in the consent decree would be a lengthy process that would just maintain the ''status quo for many months to come'' and could take years, Adams said.
The public would be better served by Adams' ruling on the case to get ''a full, complete and certain resolution.''
He called the consent decree ''little more than an agreement to agree.'' It is a develop-and-implement decree that does not contain a completed schedule for construction and upgrades nor a full resolution of the problem, he said.
Akron, the judge said, has ''consistently ignored its sewer problems for the better part of two decades.'' The city spent $10 million more on parking decks than on the sewer problem from 1993 to 2010, Adams said.
He called Akron's lack of spending on sewers to be ''particularly troubling.''
Akron made a last-minute attempt to revise its plan and sway the court, Adams noted.
Initial, revised plans
The city's initial plan called for allowing 12 overflows per year at the storage tunnels and basins to reduce the CSO problem. Akron's plan would reduce but not eliminate such overflows.
The U.S. and Ohio EPAs rejected that solution.
On March 2, Akron filed a revised plan that reduced the number of overflows at each site from 12 to three in an apparent attempt to show progress, the judge noted.
The EPAs have been calling for zero overflows.
About 30 percent of Akron's sewer system that serves 328,000 people in Akron and 13 suburbs has combined sewers.
In its plan, Akron has proposed building two underground tunnels to store sewer overflows, plus 10 concrete storage basins around the city to control the overflows that result in high bacteria counts and the threat of pathogens that can cause disease.
The city said it cannot afford to eliminate overflows and contends that doing so won't guarantee a cleaner Cuyahoga River. That's because the Cuyahoga and Little Cuyahoga rivers are polluted before they get to Akron, and bacteria from other sources still will affect water quality in the Cuyahoga Valley park, the city says.
Akron is among 700 U.S. cities with sewer overflows, an issue that has been an EPA priority since 1998. The Cleveland area, Columbus and Cincinnati are dealing with similar issues.