Circle of Blue: ELPC’s Madeline Fleisher Warns Tougher Regs Needed for Great Lakes to Avoid More Algae Bloom Disasters

After years of watching their state do little to address stormwater runoff, polluted wells, and noxious algae blooms in once clear waters, 16 Wisconsin citizens last month decided enough was enough. They filed a petition with the federal Environmental Protection Agency to force Wisconsin to correct failures in its clean water program or else take away Wisconsin’s authority to administer permits under the Clean Water Act.

It is a step of last resort expressing an utter lack of confidence in the state government’s ability and desire to protect its waterways.

The past two decades have seen the dismantling of the Wisconsin Department of Natural Resources, the state agency in charge of issuing and enforcing clean water regulations, according to Kim Wright, executive director of Midwest Environmental Advocates. The agency’s workforce has declined 18 percent since 1995. Last summer Republican Governor Scott Walker abolished the agency’s water division and its Bureau of Science Services while eliminating 18 staff positions.

Midwest Environmental Advocates, a Madison-based nonprofit law center, filed the petition for corrective action on behalf of the 16 individual citizens. The budget and staff cuts, and other changes, seriously harmed the agency’s ability to protect water, according to the petition, which also references a 2011 letter from the EPA that outlined problems within the state’s Clean Water Act programs.

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ELPC 2015: What We’ve Achieved, and What’s Next

This is a transformational year for the environment. ELPC is seizing strategic opportunities for progress on the big issues. We’re achieving strong results in these politically gridlocked times.

First, the EPA’s Clean Power Plan caps two decades of sustained advocacy by ELPC and many environmental and public health colleagues backed by sound scientific findings. The U.S. is now stepping up as a global leader advancing clean energy solutions to reduce carbon pollution.

Second, solar energy, wind power and innovative energy efficiency technologies are poised to transform the electricity market just as wireless transformed telecommunications, changing the ways that we live and work. ELPC is driving new policies to accelerate distributed Midwest solar energy installations and install one million new smart thermostats in Illinois.

Third, ELPC’s successful litigation to stop the fiscal folly Illiana Tollway, protect the Midewin National Tallgrass Prairie and promote sound regional planning is transforming transportation policy to prioritize public transit and modern regional rail instead of politically clouted boondoggles. ELPC attorneys are winning in both the court of law and the court of public opinion.

ELPC is effective. Our teams of expert public interest attorneys, M.B.A.s, policy advocates and communications specialists, combined with the ELPC Science Advisory Council, play to win and know how to get things done.  ELPC is truly making a difference for a better world.


Your support has helped ELPC advance a cleaner renewable energy mix for the Midwest, accelerate cleaner transportation, and clean up the rivers and great lakes that we all care about. Please consider ELPC’s results and make a financial contribution to support our successful program work in 2016:


Ditching the Illiana Tollway Boondoggle and Protecting the Remarkable Midewin National Tallgrass Prairie

Midewin_Illiana_250x330The proposed new Illiana Tollway is a fiscal folly, undermines sound regional planning and would harm wildlife and ecological values in the Midewin National Tallgrass Prairie. On June 16th, Federal District Court Judge Jorge Alonso granted Plaintiffs’ motion for summary judgment and declared that the federal and state transportation agencies’ approval of the Tier 1 final Environmental Impact Statement and Record of Decision “for the proposed new Illiana Expressway was arbitrary and capricious and in violation of NEPA.” This is a tremendous litigation victory for ELPC’s public interest attorneys on behalf of our clients Midewin Heritage Association, Openlands and Sierra Club.

More than a dozen newspapers across Illinois have editorialized against the Illiana “road to nowhere” during the state’s fiscal crisis and when there are much higher priorities for limited transportation infrastructure funds to enable badly-needed fixes for transit and commuter rail, intercity higher-speed rail, and highway and bridge repairs.

ELPC’s legal, economic and media advocacy and our clients’ public engagement have changed the proposed new boondoggle Illiana Tollway from a “done deal” to “terminal life support.” It’s time for Governor Rauner and Illinois’ political leadership to finally ditch the Illiana once and for all. ELPC is working hard in the federal and state courts, and in the courts of public opinion, to bring the proposed Illiana Tollway to its well-deserved end.


Installing One Million Smart Thermostats in Illinois – A National Model

NestThermostat_250x330ELPC and Commonwealth Edison worked together creating an ambitious new program to install one million new smart thermostats in Illinois homes and small businesses over the next five years. U.S. EPA Administrator Gina McCarthy joined us for the October 8th public announcement. This leading-edge initiative provides rebates up to $120, using the consumer-funded Energy Efficiency Performance Standards program resources, for the new generation of Ecobee, Nest and Honeywell thermostats that learn customer behavior and adjust cooling and heating without complicated programming. These “smart thermostats” can save consumers 15%-25% from their heating and cooling costs and reduce pollution. Once the Illinois program is off the ground, ELPC plans to replicate it in more Midwestern states. This innovative technology is a winner.


Accelerating Solar Energy in Illinois, Iowa, Michigan and Minnesota

SolarShedd_250x330Solar energy installations in the Midwest grew by 70% last year, creating jobs, new businesses and economic growth. However, the coal industry and some electric utilities are seeking to impose regulatory barriers to protect their polluting power plants and their electricity monopolies. ELPC is working to advance sound policies that drive clean solar energy forward and remove regulatory barriers to development.

In Illinois, ELPC was instrumental in helping enact and then design the state’s first $30 million distributed solar generation procurement.

In Iowa, ELPC successfully repelled Interstate Power & Light’s attempt to impose new barriers to solar development after we won a major case before the Iowa Supreme Court to remove utility-imposed barriers to conventional third-party financing arrangements for solar energy development projects.

In Minnesota and Michigan, ELPC is making steady progress with our state-based partners to design new distributed solar programs and strategies. We’re moving forward at this transformational time to accelerate solar energy development for a cleaner energy future. ELPC is pro-technological innovation, pro-competition and pro-removing regulatory barriers to solar.


Keeping the Great Lakes and Midwest Rivers Clean

LakeMichiganMichigan-sidebarThere are two main types of water pollution – from a single, identifiable “point” source and the “non-point” flows from farms, ranches and streets. ELPC is working on both.

This is the first year that the SS Badger car ferry did not dump about 1,000,000 pounds of toxic coal ash into Lake Michigan. The ship now has a new coal ash containment system thanks to an effective advocacy campaign led by ELPC with U.S. Senator Dick Durbin and our good colleagues. ELPC’s work to stop the SS Badger from polluting the drinking water supplies for 42 million people is a strong precedent that reinforces that it’s no longer acceptable to dump toxic pollution in our Great Lakes.

ELPC also brought together more than 60 scientists and policymakers for our second annual Great Lakes Science-Policy Confluence Conference to discuss solutions to mitigate “nutrient pollution” – agricultural runoff that helped cause toxic blue-green algae blooms in Western Lake Erie. In summer 2014, 500,000 people in the Toledo area were without safe drinking water supplies for 72 hours. That’s not acceptable. ELPC is stepping up our advocacy for the necessary actions to reduce nitrogen and phosphorus runoff from agricultural operations that caused the toxic algae and contaminated water supplies.

ELPC continues our Mississippi River protection legal leadership, and we convened a new collaboration of Illinois, Indiana, Kentucky, Ohio, Pennsylvania and West Virginia groups for coordinated multi-state action to help clean up the Ohio River, considered by some to be America’s most polluted waterway.


ELPC Is Accelerating the Next Generation of Sustainable Transportation

AmtrakELPC is a recognized leader in advancing the Midwest high-speed rail network, which will improve mobility, reduce pollution, create jobs and pull together the regional economy. We are working to accelerate new clean cars and trucks, which use modern technologies to increase fuel efficiency and reduce pollution.

This year, I was honored to be asked by Amtrak’s CEO to serve on a four-member Blue Ribbon Panel analyzing and recommending strategies and better practices to increase fluidity and reduce congestion for higher-speed passenger rail and freight rail in the “Chicago Gateway” leading to St. Louis, Detroit and the East Coast.



Making the Clean Power Plan Standards Work Well

coal_250x330This is the federal cornerstone for America’s commitment to climate change solutions. ELPC is working with many business, environmental, health and faith-based allies to overcome the coal industry’s and certain politicians’ litigation efforts to stall progress, and to effectively implement state climate solution action plans in the Midwest states. Overall, ELPC is advancing new policies to drive energy markets with technological innovations that can change the world.





ELPC believes in the core principle that environmental progress and economic growth can be achieved together, and we put that sustainability principle into practice every day. ELPC’s solutions-focused strategies engage diverse partners and seize opportunities to accelerate clean energy development and clean transportation technologies, protect clean air and clean water, and preserve the Midwest’s wild and natural places.

ELPC’s multidisciplinary staff teams of public interest attorneys, M.B.A.s, policy experts and communications specialists are fully engaged across the Midwest, and we’re making progress. It isn’t easy; real change never is. We don’t give up. Let’s keep working together to win.

Thank you for engaging and making a contribution to support ELPC’s work to harness this change and achieve a brighter future.


The Columbus Dispatch: Commission Lets States Decide Ohio River Mercury Tests

States along the Ohio River will decide how and where companies test to determine how much mercury they release into the waterway, according to a decision by the multistate commission overseeing the river’s health.

Thursday’s decision means there will be no single, comprehensive plan for testing how much mercury polluters release into the river.

The Ohio River Valley Water Sanitation Commission, whose members represent eight states and set pollution standards for the river, said in a statement that the decision would not increase the amount of mercury in the river.

Environmental-advocacy groups disagree.

“I think it leaves the door open for there to be more mercury going in,” said Madeline Fleisher, an Ohio-based lawyer with the Environmental Law and Policy Center, who attended the commission’s hearing in Buffalo on Thursday.

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Associated Press: Ohio River Mercury Tests Left up to States


October 9, 2015

Ohio River Mercury Tests Left up to States

By The Associated Press

COLUMBUS, OHIO — In a story Oct. 9 about testing for mercury in the Ohio River, The Associated Press erroneously identified an environmental group. It is the Environmental Law and Policy Center, not the Environmental Law and Poverty Center.

A corrected version of the story is below:

States to determine Ohio River mercury testing, panel says.

Decisions on Ohio River mercury testing will be left to states; advocates fear more pollution

COLUMBUS, Ohio (AP) — A commission monitoring pollution in the Ohio River says testing for mercury released into the water will be determined on a state-by-state basis rather than a comprehensive plan.

The multistate Ohio River Valley Water Sanitation Commission decided Thursday that states along the waterway will decide where and how companies do testing to gauge discharged mercury, The Columbus Dispatch reported.

The panel’s decision in effect nixed a 2003 commission ruling to force companies to test for mercury at discharge pipes, where the concentration would be the highest. This month was the deadline for companies to comply with the 2003 ruling.

But the commission gave assurances Thursday that the decision won’t result in increasing levels of mercury, a neurotoxin, in the river and its tributaries. Environmental advocates disagreed.

“I think it leaves the door open for there to be more mercury going in,” said Madeline Fleisher, an Ohio-based lawyer with the Environmental Law and Policy Center.

Mercury has been pumped into the water for years from steel factories, coal-fired power plants and other sources, and can make fish unsafe to eat. The amounts of mercury released are subject to regulatory limits based on tests by the companies, which sometimes do their testing in places where pollution is diluted.

Some states along the waterway, including Ohio, give permission to companies to exceed the federally regulated mercury dumping limit.

“We’re not going to clean up the entire river tomorrow, but you have to take steps in the right direction, and I don’t think this is in the right direction,” Fleisher said. “At the very least, it’s standing still when we should be moving forward.”

WDRB: Ohio River water quality commission punts on tougher mercury rule

LOUISVILLE, Ky. (WDRB) – An agency overseeing the Ohio River’s water quality won’t enforce new mercury rules set to start this month, despite the objections of clean water advocates.

At issue are so-called “mixing zones” that allow older industries to take mercury readings farther away from the point of release — thereby exceeding current pollution standards.

At a meeting in Buffalo, N.Y., the eight-state Ohio River Valley Water Sanitation Commission voted to scrap a ban on so-called “mixing zones” that was to take effect Oct. 16, according to a news release. Companies had been given a decade to prepare for the ban, which would have required them to measure mercury discharges at the “end of pipe.”

The commission – known as ORSANCO – said it still wants to eliminate the mixing zones. But it said decisions allowing companies to use the zones now will be made by state officials and be “subject to more formal opportunities for public comment and judicial review of the permitting decision.”

ORSANCO noted in its release that companies that began discharging mercury and 21 other “chemicals of concern” since 2003 still can’t use the mixing zones.

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Press Release: Multi-state commission kicks mercury ban deadline for Ohio River back to state agencies

Multi-state Commission Kicks Mercury Ban Deadline for Ohio River Back to State Agencies

 Environmental groups disappointed commission not setting consistent standard 

 BUFFALO, N.Y. – Today, an 8-state commission that oversees pollution standards for the Ohio River announced a disappointing decision to remove the October 16 effective date for a ban that would forbid companies in all states along the river from dumping high levels of toxic mercury into the waterway. Instead, the commission changed the rule to shift the responsibility to state agencies for deciding whether to allow companies to discharge larger amounts of mercury into the river, which means there will likely be no unified standard.

Mercury is a known neurotoxin that causes brain and nerve damage to children and developing fetuses when they are exposed through consumption of contaminated fish.

In 2003, the Ohio River Valley Water Sanitation Commission, known as ORSANCO, authorized a ban to take effect in 10 years that would prevent polluters located in all states along the Ohio River from releasing high levels of mercury directly into the water through the use of mercury dilution zones. The ban on these “mixing zones” would improve the safety of consumption of fish from the river and protect public health. After delaying the ban by two years, ORSANCO set a new effective date for October 16, 2015.

Instead of enforcing a specific implementation date, ORSANCO at its public meeting today in Buffalo, N.Y. announced it changed the mixing zone prohibition to “As soon as practicable,” and left final decision-making to state permitting authorities. States will now have more leeway to decide whether to grant variances to individual coal plants, factories and other industries along the Ohio River that seek exceptions to comply with the ban.

Representatives from a coalition of 20 environmental groups working toward a cleaner and healthier Ohio River are concerned that states along the Ohio River will not be tough enforcers of the ban.

“The Environmental Law & Policy Center and our partners are disappointed about this decision because it fails to recognize that polluters have already had 12 years to reduce their mercury discharges,” said Madeline Fleisher, ELPC’s Staff Attorney in Columbus, Ohio. “ORSANCO hasn’t done its job well on mercury pollution so Ohio, Illinois, Indiana and Pennsylvania need to step up and do it better. The Commission missed a crucial opportunity here to set a firm deadline for achieving safe levels of mercury in the Ohio River.”

Environmental groups worry about continued health risks for residents who benefit from the fish supply in the Ohio River and those who recreate there as well.

“ORSANCO’s decision flies in the face of Kentuckians who support the ban on toxic mercury discharges and the enforcement of water quality protections, and it flies in the face of science,” said Tim Joice, Water Policy Director at the Kentucky Waterways Alliance. “We are extremely disappointed for all the fishermen and families that eat fish from the river daily, and disappointed for the public at large. KWA will continue to fight for clean water for the health of our communities and citizens.”

The coalition also charges that  ORSANCO is abandoning its own mission to set one standard for the entire river, which is intended to reduce overall pollution and create a level playing field for industries along the length of the river.

“This decision to eliminate the ban deadline provides no end in sight to the increasing mercury pollution in the Ohio River,” said Angie Rosser, Executive Director of the West Virginia Rivers Coalition. “Cleaner water for our residents simply can’t wait.”

Several companies along the Ohio River were in the process of requesting variances to the mixing zone ban from ORSANCO and they will instead have to seek exceptions directly from states agencies.

ORSANCO, which is composed of governor-appointed individuals from eight states and three federal government representatives, is charged to conduct a review of its pollution abatement and control standards every three years. More than 16,000 public comments were submitted opposing the lifting of the mercury mixing zone ban deadline.



Cincinnati Enquirer: Ohio River mercury decision passes authority to states

State officials along the Ohio River will now be left to decide whether companies can discharge mercury and other potentially harmful chemicals into the Ohio River in areas known as mixing zones.

Members of the board of the Ohio River Valley Water Sanitation Commission (ORSANCO) made the decision Thursday morning at a board meeting in Buffalo, New York, to the dismay of many environmental groups.

“This decision is disappointing and fails to recognize that polluters have already had 12 years to reduce their mercury discharges,” a statement from the Environmental Law & Policy Center reads. “ORSANCO hasn’t done its job well on mercury pollution so Ohio, Illinois, Indiana and Pennsylvania need to step up and do it better. The commission missed a crucial opportunity here to set a firm deadline for achieving safe levels of mercury in the Ohio River. Without such a deadline, it’s likely that polluters will just spend another 12 years twiddling their thumbs rather than taking concrete steps toward reducing mercury discharges.”


Cincinnati Enquirer: Mercury in the Ohio River: To Mix or not to mix

Twelve years ago, pollution monitors banned diluting mercury into the Ohio River, a demand still under negotiation.

Across a small lake in the flood plain of the Ohio River, fish jump from the water on a gorgeous, late-summer morning.

A fisherman casts into the blue waters of one of several lakes on a 2,500-acre preserve straddling the Indiana-Ohio border, at a place known as Oxbow. The lakes are full of fish and the fisherman has a good chance at a crop of crappie, blue gill and bass.

But he’ll want to throw all but one back.

The Ohio River Fish Consumption Advisories urge him and others not to eat more than one fish per month from the river – including these wetlands, which flood at least three times a year.

Why? Mercury and other chemicals, byproducts of industry, that build up in fish over time create potential health risks.


Cincinnati Enquirer Op-Ed: Miller, Fleisher: Keep Mercury Out of the Ohio River

Michael C. Miller is professor emeritus in the Department of Biological Sciences at the University of Cincinnati. Madeline Fleisher is a staff attorney at the Environmental Law & Policy Center in Columbus.

Everyone loves a good fish story. Depending on how this tale ends, it may not be one we’ll want to read to our kids at bedtime.

That’s because this story begins with how much mercury has been dumped into the Ohio River where locals love to fish, swim, boat and jet ski. And it could end badly – and soon – if an eight-state commission announces this week it will withdraw a ban it crafted in 2003 to reduce the flow of mercury, a dangerous neurotoxin, into the river.

To be sure, there are other pollutants in the Ohio River we need to worry about too. Recent headlines rightly focused on outbreaks of poisonous algae spreading across the Ohio since August.


The Plain Dealer: Energy Efficiency was Projected to Cut Electric Consumption, Power Companies told the State

CLEVELAND, Ohio — Ohio’s electric companies were on course to help their customers cut overall power use by as much as 33 percent in coming years before lawmakers froze state energy efficiency mandates.

Filed and forgotten at the Public Utilities Commission of Ohio, the analyses and projections were drawn up by FirstEnergy, AEP Ohio, Duke Energy and Dayton Power & Light.

The 33 percent savings figure was based on the assumption that costs would not stand in the way of higher efficiency. But a more conservative estimate, looking only at solutions deemed to be cost effective, still put potential savings at 24 percent.

Despite those internal estimates of cost-effective savings, the industry lobbied against the efficiency mandates for years. Last year year, lawmakers led by Sen. Bill Seitz, R-Cincinnati, froze the program; Seitz said it was supported by “enviro-socialists.”

Now, a nationally recognized group that advocates energy efficiency has taken another look at the utility reports in the PUCO’s files.

The American Council for an Energy-Efficient Economy, or ACEEE, Wednesday issued its own report, a white paper making the case for a return of the state standards, based on those utility projections.

The four companies were asked to figure out how much power their efficiency programs could help customers save over 10 to 20 years.

Each utility projected the savings in at least two ways — maximum achievable, without consideration of the cost of the programs, and what could be achieved with “cost effective” programs, meaning the savings in using less electricity would be greater than the costs of the programs.

The reports were available to the public and mentioned at times by efficiency advocates in testimony to state lawmakers who wanted to kill the efficiency programs. The utilities never testified.

But lawmakers either ignored or dismissed references to the utility studies during the months of hearings before approving S.B. 310, the legislation that has frozen Ohio’s efficiency mandates for two years.

While the new analysis is the work of analysts employed by the ACEEE, which is a non-profit, funding for the report came in part from the Environmental Law and Policy Center and Natural Resources Defense Council, two groups that argued for keeping the mandates. Both opposed the freeze.

The ACEEE paper concludes “there is huge potential in Ohio to save families and businesses money on their utility bills through energy saving programs.”

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