Case: 5:09-cv-00272-JRA Doc #: 273 Filed: 03/27/20 1 of 3. PageID #: 33919

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,

vs.
CITY OF AKRON, OHIO,
and
THE STATE OF OHIO,

)
)
Plaintiff, )
)
)
)
)
)
)
)
)
)
Defendants. )

CASE NO. 5:09-CV-00272
JUDGE JOHN R. ADAMS
DEFENDANT CITY OF AKRON’S
NOTICE OF FILING FORCE
MAJEURE NOTIFICATION

The City of Akron, without waiving any rights, privileges or objections, hereby
provides notice of its filing of its Force Majeure Notification, dated March 24, 2020. The
Force Majeure Notification is attached hereto and incorporated herein as Exhibit 1.
Respectfully submitted,
/s/ Terrence S. Finn
Terrence S. Finn (39391)
tfinn@ralaw.com
Jessica A. Lopez (0090508)
jlopez@ralaw.com
Roetzel & Andress, LPA
222 South Main Street
Akron, OH 44308
330.376.2700
Thomas L. Rosenberg (24898)
trosenberg@ralaw.com
Roetzel & Andress, LPA
41 South High Street
Huntington Center, 21st Floor
Columbus, OH 43215
614.463.9770
Attorneys for Defendant City of Akron

 Case: 5:09-cv-00272-JRA Doc #: 273 Filed: 03/27/20 2 of 3. PageID #: 33920

PROOF OF SERVICE
I hereby certify that on March 27, 2020, a copy of Defendant City of Akron’s Notice
of Filing of Force Majeure Notification was filed electronically. Notice of this filing will be
sent to all parties indicated on the electronic filing receipt. Parties may access this filing
through the Court’s electronic filing system.
/s/ Terrence S. Finn
Terrence S. Finn

2

 Case: 5:09-cv-00272-JRA Doc #: 273 Filed: 03/27/20 3 of 3. PageID #: 33921

EXHIBIT 1
FORCE MAJEURE

14878867 _1 016756.0003

 Case: 5:09-cv-00272-JRA Doc #: 273-1 Filed: 03/27/20 1 of 4. PageID #: 33922

EUFRANCIA G. LASH
Deputy Director

CHRIS D. LUDLE
Service Director

DANIEL HORRIGAN, MAYOR
DEPARTMENT OF PUBLIC SERVICE
166 S. High St., Room 201
Akron, OH 44308-1657

March 24, 2020
Chief, Environmental Enforcement Section
US Department of Justice
DOJ No. 90-5-1-1-3144/2
PO Box 7611
Washington DC, 20044-7611
Chief, Water Enforcement and
Compliance Assurance Branch (WC-15J)
US Environmental Protection Agency,
Region 5
77 West Jackson Blvd.
Chicago, IL 60604
Director, Water Division (WD-15J)
US Environmental Protection Agency,
Region 5
77 West Jackson Blvd.
Chicago, IL 60604

Chief, Environmental Enforcement
Section
30 East Broad Street, 25th Floor
Columbus, Ohio 43215-3400
Erin Sherer
Manager Permits and Compliance
Division of Surface Water
Ohio EPA
P.O. Box 1049
Columbus, OH 43216-1049
Dean Stoll
Ohio EPA Northeast District Office
Environmental Manager
2110 East Aurora Road
Twinsburg, OH 44087

Regional Counsel (C-14J)
US Environmental Protection Agency,
Region 5
77 West Jackson Blvd.
Chicago, IL 60604
Re: United States v. City of Akron
Case No: 5:09-CV-00272
Submission of Force Majeure Notification — COVID-19 Pandemic
Dear Sir or Madam:
On March 18, 2020, the City of Akron (the "City") provided the United States and State of Ohio
(through legal counsel) with an initial force majeure notification in accordance with paragraphs 57 and 62
of the Consent Decree. The notification was provided as a result of the COVID-19 pandemic and global
health emergency because the City has reason to believe that the COVID-19 pandemic may cause a delay

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2
in meeting the applicable project deadline for one or more of the remaining control measures required
Decree. This follow-up report is being submitted in accordance with paragraphs 57 and
under the Consent Decree.
Decree.
62
62 of the Consent Decree.
I. THE COVID-19 PANDEMIC AND PUBLIC HEALTH MEASURES
2020, the World Health Organization announced that COVID-19 is a pandemic and a
11, 2020,
On March 11,
2020, Ohio Governor Mike DeWine declared a state of emergency
10,2020,
emergency. On March 10,
global health emergency.
period, significantly disrupt
COVID-19. The Governor stated that ". . .this disease will for a period,
in Ohio due to COVID-19.
COVID-19, the State of
time, and in order to protect the public from the spread of COVID-19,
our lives." Since that time,
barbershops/salons, and most of Ohio's Bureau of Motor
bar/restaurants, barbershops/salons,
schools, bar/restaurants,
Ohio has closed all schools,
22,
crowds. On March 22,
Vehicle offices. These closures followed orders cancelling events involving large crowds.
PM, requiring individuals
23, 2020 at 11:59 PM,
2020, Ohio issued a "Stay at Home"
Home" Order,
Order, effective on March 23,
to stay home unless leaving for an essential activity, essential governmentfunctions, or essential business
operations.
18,
Additional measures to address this pandemic have been taken at the local level. On March 18,
COVID-19. The City put all non-essential
2020, the City of Akron declared a state of emergency due to COVID-19.
2020,
employees, and reduced hours for other staff to protect the
hold, furloughed hundreds of employees,
services on hold,
COVID-19.
COVID-19.
of
the
spread
public from
The measures taken to address COVID-19 have impacted businesses and factories throughout the
operate, it is
country. While Ohio's Stay at Home Order allows public construction projects to continue to operate,
possible that additional restrictions and public health orders could be issued at the national, state and/or
local level.
II. THE COVID-19 PANDEMIC IS A FORCE MAJEURE EVENT
follows:
majeure" is defined within the Consent Decree as follows:
"Force majeure"
The term "Force
agents, consultants and
Akron, its agents,
(A]ny event arising from causes beyond the control of Akron,
(A]ny
contractors, or any entity controlled by Akron that delays or prevents the performance of
any obligation under this Consent Decree despite Akron's best efforts to fulfill the obligation
agents,
Clearly, the COVID-19 pandemic is an event that is beyond the control of the City, its agents,
COVID-19
that
the
possible
Moreover,
it
is
Moreover,
the
City.
contractors, or any entity controlled by
consultant, contractors,
consultant,
Decree,
pandemic could delay and/or prevent the City from meeting its obligations under the Consent Decree,
including,
including, but not limited to meeting the applicable deadlines for the remaining control measures under the
Decree, despite the City's best efforts. The pandemic has caused unforeseeable shortages in
Consent Decree,
equipment, and labor. These shortages could delay or prevent the City from
the availability of materials, equipment,
Decree. Similarly, it is possible that obligations under the
meeting its obligations under the Consent Decree.
due to current and future Federal and State requirements
prevented
delayed
or
could
be
Consent Decree
personnel,
personnel,
and the public.
project
employees,
to protect the health of employees,
16, 2020, the City received a letter from the contractor for the Ohio Canal Interception
On March 16,
("OCIT") project notifying the City that the project will be delayed due to the COVID-19 pandemic
Tunnel("OCIT")
equipment, supplies and labor and associated public health
and the associated shortages of equipment,
(as well as all of the other remaining
requirements. The City has been closely monitoring the OCIT project(as
remains
on schedule to be in operation by
project
the
OCIT
To
date,
date,
Consent
Decree).
the
projects under

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above, there remains a possibility that the City could be
However,for the reasons set forth above,
June 30,
30, 2020. However,
date.'
prevented or delayed from placing the OCIT into full operation by that date.'
The contractors for the other Consent Decree projects that are under construction have informed
pandemic. In addition to the OCIT project, the
the City about similar potential delays due to the COVID-19 pandemic.
construction:
following additional projects are currently under construction:

Rack 26 and Rack 28 enhanced conveyance;2
basin;
Rack 10/11
10/11 storage basin;
BioCEPT;
WPCS BioCEPT;

Rack 3
3 green infrastructure and enhanced conveyance
It is also possible the COVID-19 pandemic could delay or prevent the City from meeting the
applicable deadlines for the two remaining Consent Decree projects that are not currently under
Moreover,the COVID-19
EHRT. Moreover,
construction, the Northside Interceptor control measures and the OCIT EHRT.
construction,
pandemic could interfere with the City's ability to sufficiently comply with cleaning and inspection activities
Program.
("CMOM") Program.
under the City's Capacity Management and Operations Management ("CMOM")
The City of Akron is still engaged in evaluating the impact of the ongoing COVID-19 pandemic and
emergency; Ohio's governor continues to issue orders that create new stateunder the current state of emergency;
wide repercussions. The City is currently unable to address the additional items under paragraphs 57 and
time, including but not limited to, a more detailed explanation of the delay
62 of the Consent Decree at this time,
62
known,
and the duration of the delay. Once the City's evaluation is complete and additional impacts are known,
paragraph
62
57
and
62
of the
the City will supplement this report and address each of the items under
Decree.
Consent Decree.

Therefore, the flows from the Rack 18 drainage basin,
OCIT. Therefore,
11 The City recently connected Rack 18 into the OCIT.
OCIT, are being controlled by the OCIT even while the
which represent approximately 28% of the total flow to the OCIT,
pandemic, the flows from
construction activities are ongoing. Subject to potential delays due to the COVID-19 pandemic,
additional racks will be connected to, and controlled by, the OCIT prior to the OCIT going into full operation.
2
2 There is a phase of this project that is in active construction and a phase that is still in the design. The COVID19 pandemic could delay or prevent the City from meeting applicable deadlines in either or both phases of this
overall project.

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The City appreciates your consideration of this submittal. In the event you have any questions or
need anything further, please do not hesitate to contact Pat Gsellman of the City of Akron on his cell
phone at 330-208-7323.
Respectfully submitted,

Chris D. Ludle, Director
Department of Public Service
cc:

S. Helkowski
B. Cosgrove
B. Bremer
P. Gsellman
B. Gresser
T. Finn (R&A)
C. Novak (R&A)

CERTIFICATION: I certify under penalty of law that this document and its attachments were prepared
under my direction or supervision in a manner designed to ensure that qualified and knowledgeable
personnel properly gather and present the information contained herein. I further certify, based on my
inquiry of those individuals immediately responsible for obtaining the information, that I believe that the
information is true, accurate, and complete. I am aware that there are significant penalties for submitting
false information, including the possibility of fines and imprisonment.

Chris D. Ludle, Director
Department of Public Service