Case: 5:09-cv-00272-JRA Doc #: 262 Filed: 12/17/19 1 of 7. PageID #: 33263

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA
Plaintiff,
v.
CITY OF AKRON, et al.

Defendants.

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CASE NO.: 5:09CV272
JUDGE JOHN ADAMS
ORDER

Four hundred thirty-three million gallons. 433,000,000. By the parties’ current
estimates, that is the amount of combined sewage that will flow into Akron’s waterways
exclusively due to Akron’s failure to timely complete the Ohio Canal Interceptor
Tunnel.1
A. Background
On January 17, 2014, the Court approved the parties’ Consent Decree which
incorporated their agreed-upon Long-Term Control Plan Update (“LTCP”).2 In reaching
its decision, the Court heard testimony about the LTCP projects from Mark Klingenstein,
including: “The centerpiece of the program is two large underground storage tunnels that
together will have a total volume of almost 50 MG – million gallons.” Doc. 129 at 14.
1

This number is premised upon the current expected completion date, June 30, 2020. The figures related to
the impact of the tunnel are taken directly from calculations made by the United States utilizing the model
of the sewer system created by the City of Akron.
2
The Court has also approved two subsequent Amendments to the Decree. On September 20, 2016, the
Court approved an amendment to change the sequencing of upgrades to the wastewater treatment plant and
to eliminate the City’s requirement to build a parallel relief sewer. On December 17, 2019, the Court
approved the Second Amendment to the Decree. The Second Amendment permitted the City of Akron to
replace numerous rack basins with green infrastructure and permitted the City to utilize BioCEPT
technology in place of BioActiflo.

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Klingenstein described the first tunnel project as follows: “In the case of the Ohio Canal
tunnel, it's a 28-foot diameter tunnel which is certainly a very substantial tunnel. It's a bit
over a mile long. Somewhat over 25 million gallon capacity.” Doc. 129 at 26. The
parties described the Ohio Canal Interceptor Tunnel (“OCIT”) as a “signature[] element”
of the LTCP Update (Doc. 123-1 at 11-12) and a “critical aspect of the Decree.” Doc.
123-1 at 41. A fully operational OCIT would eliminate, on a yearly basis, the discharge
of 289 million gallons of combined sewage overflow into Akron’s waterways.
B. Akron Continues to Pollute the Cuyahoga River and Cuyahoga Valley
National Park
More than eight years after the parties first requested entry of the Decree and
while publicly touting that it has made “significant progress in upgrading its sewer
infrastructure,”3 Akron continues to significantly pollute the Cuyahoga River and the
Cuyahoga Valley National Park. Akron’s failure to comply with the parties agreed-upon
construction schedule has resulted in millions of gallons of untreated or partially treated
sewage being discharged into Akron’s waterways.4 Utilizing Akron’s own modeling, the
U.S. EPA estimated that a one-year delay in completion of the OCIT would result “in the
discharge of 289 million gallons more of untreated combined sewage than would have
been discharged had the OCIT been completed on time.”

In other words, roughly

800,000 gallons of combined sewage is discharged into the surrounding waterways for
every day that the OCIT’s completion is delayed.

3

http://www.akronwaterwaysrenewed.com/news/city-of-akron-celebrates-progress-in-consent-decreeprojects.aspx (last visited on 12/10/19).
4
Despite U.S. EPA and Ohio EPA having knowledge of Akron’s non-compliance, neither entity has made
any effort to quantify the actual environmental harm caused by Akron’s delay in completion of the OCIT.

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Until recent developments, the Court, and by all appearances the public as well,
was under the impression that the deadlines for projects in the Decree and LTCP were
being upheld by all those involved. However, recent inquiry by the Court related to the
parties’ request to enter a Second Amendment made it clear that the Court’s impressions
were erroneous. During an April 18, 2019 telephone conference, the parties indicated
that the OCIT had not been completed by the date required in the LTCP, December 31,
2018. On July 30, 2019, the United States provided an update that the OCIT was then
374 days behind schedule – or would be completed in early January 2020. When asked if
the environmental harm related to the delay had been calculated, the United States
replied: “We haven’t taken any specific steps to model what the harm might be.” Doc.
242 at 6. The United States, however, indicated: “But we have no doubt[] there is
significant environmental impact, and we will proceed with that expectation.” Doc. 242
at 7.
On October 30, 2019, the City of Akron provided the Court its most recent update
with respect to completion of the OCIT. The City indicated that with the removal of
certain items that were not required to meet full operations, the newest estimate for
completion of the OCIT is June 30, 2020.5 The United States provided its most recent
update on October 30, 2019 as well. Within that response, the United States indicated
that it had not received a substantive response to its July 26, 2019 letter requesting
information on the OCIT and that it did not expect to receive such information until
November.
C. Inaction by the United States EPA and Ohio EPA

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Based upon the to-date history of the project, it is difficult to place any confidence in this newest estimate
for a completion date.

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The United States EPA defines its mission as follows:
“The mission of EPA is to protect human health and the environment.”
https://www.epa.gov/aboutepa/our-mission-and-what-we-do (last visited
12/2/19).
“EPA is returning to its core mission of protecting human health and the
environment. We are committed to providing clean and safe air, water, and
land for all Americans. We are building on the enormous progress EPA
has made since it was established in 1970 – increasing the safety of lakes
and rivers, reducing smog, cleaning up contaminated lands, and
guaranteeing the safety of chemicals in the marketplace.”
https://www.epa.gov/home/returning-epa-its-core-mission (last visited
12/2/19).
Similarly, Ohio EPA describes its role as:

“Ohio EPA’s goal is to protect the

environment and public health by ensuring compliance with environmental laws and
demonstrating leadership in environmental stewardship.”6
Despite the above, neither EPA entity has taken any action to remedy the City of
Akron’s non-compliance with the deadline for the “centerpiece” of the Consent Decree,
the OCIT. For that matter, neither entity has engaged in any activity to even ascertain the
environmental damage flowing from Akron’s failure to meet its deadlines. When the
Court ordered the parties to provide updated information regarding the future completion
date for the OCIT, the U.S. EPA responded as follows on October 30, 2019: “The United
States expects that the City of Akron, which has far more complete and current
information, will respond on this topic.” Doc. 257 at 2. U.S. EPA went on to note that it
had requested updated information from the City of Akron on August 21, 2019, but
“Akron has not yet provided the information requested in our August 21 letter.” Doc.
257 at 2. U.S. EPA continued by indicating that it expected the City of Akron to “begin

6

https://epa.ohio.gov/About (last visited 12/11/19).

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to provide” the information sought in the August 21, 2019 letter by “mid-November” –
some four months after its request.
Ohio EPA provided the Court even less information. With respect to the delay in
completion of the OCIT, Ohio EPA responded that it “expects that the City of Akron will
report on this topic.” Doc. 258 at 1.
As detailed above, these are the state and federal entities charged with protecting
the waterways surrounding Akron and enforcing the terms of the Decree. With respect to
completion of the OCIT, the centerpiece of Akron’s system, they have wholly abdicated
their roles.

In correspondence with the City, U.S. EPA expressed that it was

“disappointed that the City had not provided the information in a more timely fashion”
but that it understood “the concerns the City has expressed that fully responding to the
information request could disrupt ongoing discussions between the City and its project
contractor.” Doc. 257-3. In other words, U.S. EPA has allowed Akron to thumb its nose
at the deadlines in the Decree. U.S. EPA has allowed Akron to evade providing basic
information about an expected completion date over unspecified concerns regarding the
contractor. In the interim, the Cuyahoga River and Cuyahoga Valley National Park have
endured an additional twelve months of pollution from Akron’s sewer system. Those
same sensitive areas are expected to endure, at a minimum, another six months of
millions of gallons of pollution. Meanwhile, U.S. EPA is “continuing to evaluate all
enforcement options.”
consideration.

However, one option has been wholly removed from

Current U.S. EPA policy no longer allows the EPA to pursue

supplemental environmental projects from municipalities. In other words, one avenue of

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mitigating the damage caused by Akron’s continued pollution has been foreclosed
entirely.
D. The Court’s Role
The Consent Decree contained Section XXIII, Retention of Jurisdiction, which
reads as follows:
The Court shall retain jurisdiction of this case until termination of this
Consent Decree, for the purpose of resolving disputes arising under this
Decree or entering order modifying this Decree, pursuant to Sections XIV
(Dispute Resolution) and XXIV (Modifications), or effectuating or
enforcing compliance with the terms of this Decree.
Doc. 155 at 56. The Sixth Circuit also recently explained in a matter involving alleged
violations of the Clean Water Act by a municipality:
A consent decree is a settlement agreement subject to continued judicial
policing. It is well-settled that courts retain the inherent power to enforce
agreements entered into in settlement of litigation pending before them.
We have emphasized that the district court’s inherent power is broad, and
the court’s choice of remedies is reviewed for an abuse of discretion.
United States v. Bd. of Cty. Commissioners of Hamilton Cty., Ohio, 937 F.3d 679, 688
(6th Cir. 2019)(citations, quotations, and alterations omitted). The Sixth Circuit went on
to note that “[d]istrict courts possess broad authority to enforce the terms of consent
decrees, even where doing so requires interfering with municipal prerogatives or
commitments.” Id. at 691.
Based upon the above facts, the parties are hereby ordered to show cause why the
Court should not utilize its retained jurisdiction and inherent power to appoint a monitor
to oversee compliance with the Decree. The record before the Court is clear. The parties
do not dispute that the City of Akron has not complied with the deadline for completion
of the OCIT. It is further undisputed that the parties failed to take any affirmative steps

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to inform the Court of this noncompliance. Additionally, while the U.S. EPA and Ohio
EPA continue to evaluate their options, they have taken no action to compel Akron’s
compliance, nor has either entity proposed any solution to mitigate the harm to the
environment flowing from Akron’s noncompliance.
This past June marked the 50th anniversary of the Cuyahoga River Fire – the event
which generated a public response so strong that it culminated in the creation of the U.S.
Environmental Protection Agency.7 Regulations such as the Clean Water Act helped to
renew the area, and the Cuyahoga Valley National Park has annually hosted more than 2
million visitors every year following entry of the Consent Decree.8 Unfortunately. Akron
continues to impact the ability of those visitors to fully enjoy all the Park has to offer by
its continual pollution of the waterways that run through the Park. As the result of this
continued pollution and the inaction of the governing agencies, the Court is left with no
alternative other than to explore the appointment of a neutral monitor to help ensure
future compliance with the deadlines and standards in the Consent Decree.
The parties shall submit their responses to this Order by no later than January 10,
2020.
IT IS SO ORDERED.

Date: December 17, 2019

/s/ John R. Adams_______
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT

7

https://www.history.com/news/epa-earth-day-cleveland-cuyahoga-river-fire-clean-water-act (last visited
12/16/19).
8
https://irma.nps.gov/ (last visited 12/16/19).

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