Ohio

ELPC Sues US EPA for Compliance Plan to Reduce Phosphorus Pollution in Western Lake Erie

FOR IMMEDIATE RELEASE

Contact: Judith Nemes, (312) 795-3706, JNemes@elpc.org

ELPC Sues US EPA for Compliance Plan to Reduce Phosphorus Pollution That Creates Harmful Algae Blooms in Western Lake Erie

ELPC asks Court to keep EPA on Schedule to Clean Up Lake Erie

Toledo, OH – The Environmental Law & Policy Center (ELPC) today filed a new related lawsuit in the United States District Court for the Northern District of Ohio challenging the United States Environmental Protection Agency’s approval of an Ohio EPA July 2018 report as legally inadequate. The Ohio EPA’s 2018 report provided no effective plan for reducing phosphorus pollution into western Lake Erie which is now designated as “impaired” waters under the Clean Water Act.

ELPC and co-plaintiff Advocates for a Clean Lake Erie (ACLE) are seeking a judicial remedy providing a compliance plan to require progress on a specific timeline to reduce phosphorus pollution in western Lake Erie by 2025, and provide for public accountability. Phosphorus in manure and fertilizer runoff from agricultural sources is the principal cause of harmful algal blooms that have plagued Lake Erie for many years.

“The Clean Water Act provides a specific legal pathway to reduce phosphorus pollution causing harmful algae blooms in western Lake Erie, but U.S. EPA and Ohio EPA refuse to follow the law,” said Howard Learner, ELPC’s Executive Director. “The Court should require EPA to do its job well by promptly adopting and implementing an effective Clean Water Act plan to limit manure and fertilizer runoff that causes harmful algal blooms.”

The Clean Water Act requires an effective plan that implements a Total Maximum Daily Load (TMDL) cap to limit pollution discharges into the Maumee River system, which flows into western Lake Erie. But Ohio EPA argues that it must only follow the non-binding Great Lakes Water Quality Agreement instead of a TMDL with enforceable regulatory standards.

Neither U.S. EPA nor Ohio EPA have followed the TMDL process to reduce pollution of manure from industrial animal feedlots and fertilizers from large agricultural operations that run off into rivers and streams that eventually result in phosphorus entering into Lake Erie.

“The Court has an important role to play in making sure Ohio doesn’t waste more time delaying effective measures to protect Lake Erie from pollution,” said Madeline Fleisher, ELPC Senior Attorney. “U.S. EPA isn’t holding the state accountable so we’re asking the court to do so.”

“The Clean Water Act is the law of the land, but Ohio keeps trying to escape its legal obligation to protect Lake Erie from factory farm pollution,” said Mike Ferner, a coordinator at ACLE. “The state has said western Lake Erie is one of its highest priorities, and the court shouldn’t let Ohio EPA and U.S. EPA get away with simply lip service.”

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Midwest Energy News: Coal Closings May Undermine FirstEnergy’s Attempt to Shift Plant to Bankrupt Subsidiary


Coal Closings May Undermine FirstEnergy’s Attempt to Shift Plant to Bankrupt Subsidiary

By Kathiann M. Kowalski

FirstEnergy wants to transfer a West Virginia coal plant into its bankrupt subsidiary’s portfolio, but the justification for the move is in doubt as the company seeks other coal plant closures.

On August 26, FirstEnergy Solutions’ Chief Restructuring Officer Charles Moore told the bankruptcy court in Ohio that “another coal-fired power station … would add purchasing power to enhance the value to the Debtors’ enterprise.”

Yet FirstEnergy had already scheduled the Pleasants Power Station in West Virginia to close next year.

And just three days after Moore’s declaration, FirstEnergy Solutions announced it would close the Eastlake coal plant and remaining coal and diesel units at the Sammis plant in Ohio, along with 2,490 megawatts of capacity at the Bruce Mansfield coal plant in Pennsylvania.

Environmental advocates welcomed the shutdown news. “This will mark the end of FirstEnergy’s coal portfolio in the state of Ohio,” said Dan Sawmiller, Ohio energy policy director for the Natural Resources Defense Council.

First Energy Solutions President Don Moul said in an August 29 press release announcing the latest planned closures: “As with nuclear, our fossil-fueled plants face the insurmountable challenge of a market that does not sufficiently value their contribution to the security and flexibility of our power system.”

At the same time, the company could reverse its decision if the federal government mandates support for fossil and nuclear generating plants.

Either way, the timing raises questions about who benefits from the proposed transfer, and how it might affect consumers or taxpayers.

“What’s good for FirstEnergy here is not necessarily good for the public,” said Howard Learner, executive director of the Environmental Law & Policy Center.

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Toledo Blade: Lake Erie Foundation Seeks to Join Landmark Lawsuit

Lake Erie Foundation Seeks to Join Landmark Lawsuit 
By Tom Henry

The 500-member Lake Erie Foundation is the latest group trying to become co-plaintiffs in a lawsuit calling upon Senior U.S. District Judge James G. Carr to order the most comprehensive cleanup strategy for western Lake Erie.

The foundation is a nonprofit formed in 2016 when Lake Erie Waterkeeper and the Lake Erie Improvement Association were combined.

In a document filed Tuesday in U.S. District Court, the group joined the cities of Toledo and Oregon in making a near-identical request to become co-plaintiffs in a lawsuit two groups — the Environmental Law & Policy Center and Advocates for a Clean Lake Erie — brought against the U.S. Environmental Protection Agency in 2017.

The latter two groups have contended all along that the U.S. EPA has not been living up to requirements for Lake Erie that were established by Congress under the federal Clean Water Act back in 1972.

 

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Toledo Blade: Toledo, Oregon Become Parties to ELPC Lawsuit against US EPA for Stronger Lake Erie Protections

Toledo, Oregon Push for Stronger Lake Erie Protections
By Tom Henry

Toledo and Oregon have become parties to a lawsuit filed by two groups that calls upon U.S. District Judge James G. Carr to order the most comprehensive cleanup strategy for western Lake Erie, known as a total maximum daily load.

The next court date is Aug. 21.

The U.S. Department of Justice, on behalf of the U.S. Environmental Protection Agency, is opposed.

The two plaintiffs, the Midwestern-based Environmental Law & Policy Center and the Toledo-based Advocates for a Clean Lake Erie, contend the federal Clean Water Act requires the highly aggressive TMDL cleanup strategy to be followed by the Ohio Environmental Protection Agency once the Kasich administration finally relented in March — after years of resistance — and declared western Lake Erie’s open waters to be impaired.

They want the judge to impose a TMDL order on the U.S. EPA, with the understanding the federal agency would then require the Ohio EPA to carry out the program.

Toledo’s decision to get involved dates back to May 1, 2017, a day before Mayor Wade Kapszukiewicz announced his candidacy for that office.

During an all-day tour of southeast Michigan factory farms, Mr. Kapszukiewicz, a Democrat, told The Blade there were two things he would do if elected: First, call for the impairment status and, second, have Toledo assist the two plaintiffs in their lawsuit.

He never had to call for the impairment status once elected because former Mayor Paula Hicks-Hudson — a Democrat who had long sided with the Kasich administration on that issue — had a sudden change of heart last September, weeks before the election, after a thick blanket of algae appeared in downtown Toledo just as ProMedica was preparing for a major regatta near Promenade Park.

“I campaigned on cleaning up the lake and we are following through on that today by filing this motion,” Mr. Kapszukiewicz said in his prepared remarks Friday, referring to a court filing known as an amicus brief.

“We need to hold the nonpoint sources accountable and this is one way we can do it. We support the efforts of the Environmental Law & Policy Center, Advocates for a Clean Lake Erie, and Mike Ferner, who has pushed for years to get tougher regulations for polluters,” the statement said.

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The Blade: U.S. EPA Accused of Procedural ‘Sleight-of-Hand’ over Western Lake Erie Algae Cleanup Strategy

U.S. EPA Accused of Procedural ‘Sleight-of-Hand’ over Western Lake Erie Algae Cleanup Strategy
By Tom Henry

In the latest volley of a high-stakes lawsuit that could affect the future of western Lake Erie, the U.S. Environmental Protection Agency is being accused of playing games and “once again engaging in [a] procedural sleight-of-hand” while also letting the state of Ohio give “lip service” to the idea that it’ll someday enact the most aggressive cleanup strategy.

The accusations were leveled in a U.S. District Court brief filed Tuesday by the Environmental Law & Policy Center and its co-plaintiff, Advocates for a Clean Lake Erie.

The two groups, through its lawsuit against the U.S. EPA, forced the Ohio EPA earlier this year to designate western Lake Erie as impaired under the federal Clean Water Act, ending the Kasich administration’s years of resistance on behalf of agriculture. They have implored Senior U.S. District Judge James G. Carr of Toledo to stick with the case so the designation does not just become symbolic.

Madeline Fleisher, an ELPC attorney based in Columbus, stated in the opening line of her brief that the U.S. EPA “is once again engaging in [a] procedural sleight-of-hand in an attempt to obscure the substance of this case,” almost echoing an admonishment the judge made in a 25-page order back in April when he accused the two regulatory agencies of botching the Lake Erie impairment controversy and, at one point, accused the U.S. EPA of demonstrating a “whiff of bad faith.”

 

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WOSU: Bill Would Let Companies Opt Out Of Weaker Renewable Energy Standards

June 26, 2018
Bill Would Let Companies Opt Out Of Weaker Renewable Energy Standards
By Andy Chow

A bill that would overhaul the way Ohio mandates the use of renewable energy and energy efficiency is likely to get a vote in the Senate this week.

The bill would take the amount of renewable energy the state requires to be on the grid, and cut it by a third.

The measure gives more companies the ability to opt out of energy efficiency standards.

Robert Kelter with the Environmental Law and Policy Center says companies that opt out will end up spending more money on their electric bills which will have a ripple effect on all Ohioans.

“It would allow energy customers who really don’t have the knowledge or the expertise about energy efficiency to make the efficiency investments that they should be making,” Kelter said.

The Ohio Chamber of Commerce defends the opt out provision arguing that it allows companies to make energy decisions based on marketplace demands.

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Bloomberg BNA: Farmers Grow Worried as Kasich Eyes Them for Lake Erie Cleanup

 

June 22, 2018
Farmers Grow Worried as Kasich Eyes Them for Lake Erie Cleanup
By Alex Ebert

Voluntary programs to curb the fertilizers feeding toxic algae blooms in Lake Erie have failed, and now Ohio’s Republican governor is pushing a bill to clamp down on farmers ahead of a lawsuit seeking federal standards instead.

Gov. John Kasich is floating proposed legislation that would empower the state Agriculture Department to impose farm-by-farm nutrient plans to minimize runoff into rivers that flow into Lake Erie. If the state’s Republican-led Legislature balks, Kasich will consider issuing new regulations through executive order instead, Ohio EPA spokeswoman Heidi Griesmer told Bloomberg Environment June 20.

Lake Erie experienced significant algal blooms in recent years, including in 2013 and 2014 when people got sick from drinking water in the Toledo, Ohio, area. Kasich’s plan comes as environmental groups are suing the federal Environmental Protection Agency to force it to impose federal standards to limit the amount of phosphorus washing into the lake. The governor’s push threatens to pit the Republican against the state’s farmers, who favor voluntary programs instead and argue they’re already heavily regulated.

But those programs haven’t worked, Ohio EPA Director Craig Butler said in June 19 testimony before a House committee. The state EPA doesn’t have the authority to regulate farms, which contributed 80 percent of the commercial fertilizer that flows into Lake Erie. Kasich’s proposed bill would direct the Agriculture Department to establish rules for “watersheds in distress.” That would require nutrient management plans that address fertilizer use by farms in Lake Erie’s watersheds.

That plan already faces opposition from farmers and some members of Kasich’s own party.

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Energywire: Ohio Senate Looks for Compromise in Energy Stalemate

June 20, 2018
Ohio Senate looks for compromise in energy stalemate 
By Jeffrey Tomich

As its Great Lakes neighbors Illinois and Michigan firm up plans to add thousands of megawatts of new wind and solar energy in the coming years, a stalemate over clean energy policy drags on in the Buckeye State.

The Ohio Senate Energy and Natural Resources Committee will try to move the debate forward this afternoon as it holds another hearing on a substitute version of a bill that passed the House mostly along party lines in March 2017.

Unlike H.B. 114, which would have ended renewable energy mandates, the substitute bill lowers renewable energy targets. It would also make other key changes, including easing wind turbine setback requirements put in place in 2014.

The proposal to relax wind setback requirements has support from legislators in both parties, as well as wind developers like EDP Renewables and Apex Clean Energy.

Some clean energy advocates, too, have signaled that they’re willing to live with lower clean energy targets to help jump-start wind development and provide certainty in the market.

But sharp divisions remain on certain provisions in the substitute bill, especially around energy efficiency, and it’s less than clear whether the bill will appear before the Legislature before it adjourns next Wednesday.

Environmental and consumer groups will testify in opposition to the H.B. 114 substitute bill.

Among the key sticking points for environmental advocates is an opt-out provision for so-called mercantile customers, or commercial and industrial customers that use at least 700,000 kilowatt-hours of energy a year. Another provision would allow utilities to carry over energy savings from one year to the next for the purpose of earning financial incentives.

“If we can fix some of the critical elements of the bill, it will be a compromise we can live with,” said Robert Kelter, an attorney for the Chicago-based Environmental Policy & Law Center, a Midwestern advocacy group.

“We’re willing to make trade-offs in return for certainty,” he said. “But those trade-offs can’t include killing energy efficiency.”

Currently, only the largest industrial energy users are allowed to opt out of utility efficiency programs — a policy compromise agreed to during an earlier debate over Ohio’s clean energy standards in 2013.

Trish Demeter, vice president for energy policy at the Ohio Environmental Council Action Fund, said the provision predictably led to an outcry from business customers that narrowly missed qualifying for the opt-out.

“Opt-outs are an inherently unfair policy,” Demeter said. “Where do you draw the line?”

 

Opt-Out Option

Under the proposal in the Senate substitute bill, a wide range of commercial customers would be allowed to opt out of paying into efficiency and peak demand reduction programs, including smaller businesses that still rely on utilities to help them identify energy savings opportunities, she said.

Meanwhile, the Ohio Chamber of Commerce singled out the efficiency opt-out provision as a reason it supports the bill. The business group also favors changes to the wind setback rule.

“Energy efficiency helps businesses compete best when free enterprise drives investment decisions rather than government mandates,” Zack Frymier, the chamber’s director of energy and environmental policy, said last month in testimony.

The Senate substitute would lower Ohio’s renewable energy standard to 8.5 percent of sales from 12.5 percent by 2027. The bill would similarly reduce a 0.5 percent carve-out for solar energy.

The substitute version of H.B. 114 would lower energy savings benchmarks of 2 percent starting in 2021 to 1.5 percent and reduce cumulative savings to 17.2 percent from the 22.2 percent in the existing law.

Ohio’s renewable and efficiency standards have been a constant source of debate since they were adopted a decade ago.

S.B. 310 in 2014, a measure that froze the standards for two years, was approved by the Legislature and signed by Gov. John Kasich (R). But the governor vetoed a subsequent bill, H.B. 554, in 2016 that would have extended the freeze.

A Kasich spokesperson didn’t respond to questions seeking the governor’s stance on the Senate substitute bill.

Clean energy advocates, meanwhile, say Ohio has other policies in place to support renewable energy development, including net metering for rooftop solar and a competitive energy market that lets businesses enter power purchase agreements for wind and solar energy.

And utilities so far are having no trouble meeting or exceeding renewable targets under the existing law.

Meanwhile, both of Michigan’s large investor-owned utilities this month committed to getting at least 25 percent of their energy from renewable sources by 2030. And one of those utilities, Consumers Energy, filed plans with Michigan regulators last week to far exceed that goal and get 37 percent of its energy from renewables by the end of next decade (Energywire, June 14).

Said Demeter: “It’s just kind of silly that they’re proposing to roll it back. It’s just kind of bad optics.”

Cleveland.com: FES Nuclear Decommissioning Funds Inadequate, Consumer Groups Tell NRC

June 19, 2018
FES Nuclear Decommissioning Funds Inadequate, Consumer Groups Tell NRC
By John Funk, The Plain Dealer

CLEVELAND, Ohio — The trust funds that FirstEnergy created years ago to pay for the demolition of its nuclear power plants and clean-up are no longer adequate, a coalition of consumer and environmental groups is arguing today at the Nuclear Regulatory Commission.

Citing research done by an independent investment consulting company, lawyers for the Midwest-based Environmental Law and Policy Center and a veteran nuclear reactor expert have petitioned the NRC to take another look at the trust funds.

The NRC’s Petition Review Board is not expected to make a decision on the ELPC request immediately, said an agency spokesman.

The ELPC is arguing that as of Dec. 31, 2016, the trust funds were nearly $2.75 billion short. That’s the last publicly available decommissioning fund data.

And that date was before FENOC and plant owner FirstEnergy Solutions filed for Chapter 11 bankruptcy protection from creditors who were owed more than an estimated $2 billion on March 31 of this year.

Still, on April 4, the NRC issued a statement declaring that the company’s decommissioning funds met NRC regulations.

A spokesman for FES/FENOC had no comment, other than to cite the April 4 NRC statement.

Howard Learner, a lawyer and executive director of the ELPC, said the announced shutdown of the power plants by 2021 means the funds will have even less time to grow before they are needed to pay for decommissioning.

He said the shortfall will probably mean that the company will delay decommissioning the reactors after it shuts them down and instead move them into an NRC category called SAFSTOR.

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Toledo Blade: Group That Filed Algae Lawsuit Seeks Comprehensive Cleanup Strategy

June 11, 2018
Group That Filed Algae Lawsuit Seeks Comprehensive Cleanup Strategy
By Tom Henry

The group that forced the state of Ohio into finally acknowledging that chronically fouled western Lake Erie is indeed an impaired body of water has filed a motion in federal court seeking what is widely considered as the most comprehensive — and potentially costly — cleanup strategy.

The Environmental Law & Policy Center, which is based in Chicago and has satellite offices in other parts of the Midwest, said in its filing on Friday that nothing short of a Total Maximum Daily Load program — usually referred to as a TMDL — is legally acceptable for western Lake Erie now because of provisions spelled out in the federal Clean Water Act once a body of water has been designated as impaired.

Under a TMDL, the Ohio Environmental Protection Agency would be required to calculate the total pollution load — in this case, algae-forming phosphorus — that is acceptable for western Lake Erie and put sources of that nutrient — mostly farms — on a so-called “pollution diet.” That would mean a time-consuming fingerprint analysis, and a firm cap on how much phosphorus can come off each tract of land — with strict penalties for non-compliance.

The Kasich administration first resisted calls for the impairment designation on behalf of the state’s powerful agricultural lobby, claiming it would lead to unnecessary litigation that could hamper efforts for reducing algae more than sticking to voluntary incentives and getting widespread cooperation from farmers. It has long been working with the agricultural industry on getting more farmers to embrace best-management practices.

Now, it is balking at calls for a TMDL and, on May 10, the U.S. EPA formally agreed it would not require the state agency to develop one for western Lake Erie.

That decision — much like the federal agency’s original decision to let the state off the hook on the impairment designation — is being challenged by the ELPC, with support from Toledo-based Advocates for a Clean Lake Erie.

The motion is among the newest in a case before U.S. District Judge James Carr.

In her filing, Madeline Fleisher, a senior ELPC attorney, said the U.S. EPA’s decision to go along with Ohio’s plan is “arbitrary, capricious, an abuse of discretion, and not in accordance with the Clean Water Act.”

The Ohio EPA did not respond to requests for comment, while a U.S. EPA spokesman said the federal agency has a policy against commenting on pending litigation.

Two U.S. Department of Justice attorneys representing the federal EPA told Judge Carr at a recent court hearing in Toledo it is their position that he cannot order a TMDL. They also said they believe the case should have been dismissed after the impairment designation was made.

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