Guardians of Grand Lake St. Marys

BREAKING NEWS!

GOVERNOR KASICH FIRES OH DEPT. OF AGRICULTURE DAVID DANIELS!

GOGLSM RESPONDS to the Firing of
OH Dept. of Agriculture, David Daniels

Contact Information:

Guardians of the Grand Lake St. Marys
Kate Anderson – trout@columbus.rr.com, 614-558-3105

FOR IMMEDIATE RELEASE: (10/24/18)

Guardians of Grand Lake St. Marys Applaud Governor’s Action to Hold State Agriculture Director Accountable for Unchecked Pollution in Ohio’s Waterways

The Guardians of Grand Lake St. Marys (GOGLSM) issued a statement today applauding Governor John Kasich’s decision to dismiss Ohio Department of Agriculture Director David Daniels as an important first step in holding state officials accountable for the unchecked pollution of Ohio’s waterways. However, more accountability is needed, the group warned, in order to restore the public’s faith in the state’s ability to both take the pollution seriously and significantly curb the ongoing assault on the state’s water supplies:

“Director Daniels has unquestionably been complicit in the pollution of Ohio’s waterways, but he has not acted alone. The list of those who have failed to take action is long, and accountability for their failures is long overdue. Officials from Ohio’s Department of Natural Resources, Environmental Protection Agency and the Attorney General’s office have all played a role in allowing the tainting of our state’s waterways to go unaddressed and unresolved. Those agencies and individuals deserve Governor’s Kasich’s scrutiny and discipline as well.

Countless government ‘studies,’ bogus projects and misinformation campaigns have attempted to give the public the impression that state officials are working hard to clean-up Ohio’s waterways. As those attempts to sugar coat the truth are rolled out, the state has been slow to act on Freedom of Information Act requests for manure management plans that would actually shed light on any steps being taken to begin to address the problem.”

In 2010, Grand Lake St. Marys (GLSM) experienced a lake-wide blue-green algae bloom. Despite repeated calls from residents and environmental protection groups, there has been no full disclosure of the cause of the heightened contamination levels in the lake. While state officials have said nearly $40 million has been invested in cleaning up the lake, those funds appear to have been spent on projects with little chance of improving water quality.

“Governor Kasich still has time to take decisive action and leave a lasting legacy of environmental stewardship and the protection of Ohio’s waterways,” the group said. “He should begin by promising to veto any legislation to repeal the state’s ‘frozen ground legislation,’ which has shown some promise in addressing waterway pollution. As Governor, he should also exercise his authority to identify and designate troubled waterways and require proper testing and clean-up solutions for those that are contaminated. By doing so, Governor Kasich will send a strong message to the people of Ohio that he intends to use his remaining days in office to champion public health and hold accountable those who have turned their backs on the residents who rely on these waterways each and every day.”

Gov. John Kasich is speaking out about why he fired the former director of the Ohio Department of Agriculture last week.

David Daniels says he was surprised when he was called into Kasich’s office last week and fired. But Kasich says it came down to protecting Lake Erie.

“I feel very strongly about the lake and as we get into transition, I want to make sure I have somebody there who is fully on board with that and sometimes change is necessary,” Kasich says.

Kasich says he’s disappointed lawmakers and farmers want to just look into actions that might help stop algae blooms in the lake. He says it’s been studied and he wants action, and that it’s unacceptable to continue to allow it to be polluted with runoff from farms. Daniels says he joined farmers in their reservations about an executive order Kasich signed this summer that created tougher rules on fertilizer and nutrient runoff.

Source: Morning Ag Clips
_____________________________________________

Two more quit as Kasich makes final stand on algae

By
Randy Ludlow

The Columbus Dispatch

Posted Oct 23, 2018 at 5:07 PM
Updated at 5:54 AM

With less than three months remaining in office, a frustrated Ohio Gov. John Kasich is making a final stand in his bid to rid Lake Erie of algae blooms.

The governor fired Ohio Department of Agriculture Director David Daniels on Friday, and followed with a swipe at fellow Republicans in the General Assembly on Tuesday over their opposition to his move for more dramatic action to clean the lake of sickly green algae that imperils drinking water and recreation.

The departures at the top of the Agriculture Department were not limited to Daniels.

After Daniels was fired, deputy director Janelle Mead and chief legal counsel Dustin Calhoun submitted their resignations effective Nov. 1. Mead joined the department in 2011 and oversaw legislative, communication and marketing efforts. Calhoun joined the department as its top lawyer in 2016 after serving as chief counsel at the Department of Youth Services.

They could not be reached to comment Tuesday. Their resignation letters did not state their reasons for departing.

Kasich issued an executive order in July, asking that eight watersheds that drain into western Lake Erie be declared in distress to allow tougher limits to be imposed on farmers’ use of fertilizers that ultimately drain into the lake and fuel algae blooms. A state panel has yet to act on his request, but could vote Nov. 1.

“I feel very strongly about the lake and as we get into transition (to the next governor), I want to make sure I had somebody there who is fully on-board with that. Sometimes, change is necessary,” Kasich said of the firing of Daniels.

Daniels, who was surprised by his firing, said he believes Kasich’s directive is misguided. He said he wanted to pursue less-intrusive ways of containing fertilizer runoff to allow farmers to continue to feed their crops as they see fit. The Ohio Farm Bureau and other groups have objected to the governor’s moves.

Kasich expressed frustration with having to use an executive order because the General Assembly failed to act to lessen Lake Erie algae blooms.

“The fact is this is not against agriculture, but the truth is we also cannot continue to damage Lake Erie — it’s one of our crown jewels,” the governor said.

“We know this garbage flows into that lake and we’re saying, ‘farmers, let’s come up with a plan, let’s figure this out.’ It’s not like we’re trying to shut you down or anything.”

Deputy Agriculture Director Tim Derickson, a former state lawmaker, was named interim director of the department by Kasich upon Daniels’ departure.

A task force of the Ohio Soil and Water Commission that is considering Kasich’s request to approve distressed watershed designations, is scheduled to meet Thursday.

Fred Cash, chairman of the task force, said recommendations, studies and public comments will be discussed. The full commission will meet Nov. 1 to either vote on Kasich’s request or continue the matter for further study, he said.

rludlow@dispatch.com
@RandyLudlow

NOTE: SEE GOGLSM RESPONSE ON TODAY'S BLOG!

Who will influence the
future of GLSM in the future?
Do your research and vote!!

voting is our most powerful tool. Ask all candidates about their positions on the declining state of Ohio's waterways.

Special
Announcement

Guardians of Grand Lake St. Marys obtained legal counsel three years ago, provided by the organization "Public Justice", to build legal strategies to address the refusal of the Kasich Administration to clean up GLSM. Also, The Administration has refused to implement the Clean Water Act and its requirement to implement the 2007 Total Maximum Daily Load (TMDL) report and instructions.

How much time is left?

Grand Lake St. Marys is now the 3rd most polluted
lake in the U.S. and the Kasich Administration continues
to refuse to implement the
TMDL recommendations.
Source: US EPA

52.2 ppb - 10/30/18
(Only Ohio location over 20ppb
for the month of October.)

Ohio Health Dept. again posted a"No Contact" warning for Grand Lake St. Marys in 2018.

Eight years since the lakewide algal bloom and still the Kasich Administration has done nothing! Why?

The Grand Lake St. Marys' (GLSM) toxin levels continue to worsens while the Governor Kasich Administration deliberately does little to help. Go to the Links page and contact your elected and state office holders. Tell them you want a real deadline for the permanent clean-up of GLSM.

GLSM 's Microcystins levels continue to be off the charts.

Below is a list of the microcystins ppb levels around the state. Any microcystins level under 10ppb is not included here. The list includes microcystins by a range of 10ppb at a time. Of the ranges of 10ppb to 80ppbs, only Buckeye Lake had a higher levels than Grand Lake St. Marys. In the range of 20ppb Buckeye Lake had a higher level than GLSM by only 0.50ppb. In all other ranges, GLSM always had levels higher than any of the other locations tested in the state.

As millions of dollars are being spent for Buckeye Lake and Lake Erie for basically political and economic reasons. Yes, GLSM has received approximately $21,000,000 but it was spent on worthless projects. The GLSM microcystins levels have grown steadily every year. Citizens in the GLSM watershed has lost 50 million of dollars. Kasich administration continues to ignore the degradation of GLSM.

As seen in the chart below, GLSM is the only testing location in Ohio with microcystins levels 50ppb and above.

How does Grand Lake St.Marys compare to other Ohio polluted bodies of water?

                       2018 State Microcystins Levels                          Source: OH EPA

Grand Lake St. Marys, Buckeye Lake and Carroll Water and Sewage City
are higher than 10.0

Locations (Celina is GLSM)               Date Collected   Toxin        Parts per Billion
CARROLL WATER AND SEWER-Raw        8/7/18      Microcystins        10
CELINA CITY-TP-LT2001-Raw                   3/26/18      Microcystins        10
CELINA CITY-TP-LT2001-Raw                     4/8/18      Microcystins        10
CELINA CITY-TP-LT2001-Raw                     4/1/18      Microcystins        10.4
CELINA CITY-TP-LT2001-Raw                   3/25/18      Microcystins        10.8
CELINA CITY-TP-LT2001-Raw                    1/16/18     Microcystins         11.2
CELINA CITY-TP-LT2001-Raw                    3/19/18     Microcystins         11.8
CELINA CITY-TP-LT2001-Raw                    3/20/18     Microcystins         12.1
CELINA CITY-TP-LT2001-Raw                      3/4/18     Microcystins         12.4
CELINA CITY-TP-LT2001-Raw                    3/13/18     Microcystins         12.7
CELINA CITY-TP-LT2001-Raw                    3/18/18     Microcystins         12.7
CELINA CITY-TP-LT2001-Raw                      1/7/18     Microcystins         12.9
CELINA CITY-TP-LT2001-Raw                    3/12/18     Microcystins          13.1
CELINA CITY-TP-LT2001-Raw                    4/16/18     Microcystins          13.3
CELINA CITY-TP-LT2001-Raw                    3/11/18     Microcystins           14
Buckeye Lake, L-2                                       6/14/18     Microcystins           14.2
Buckeye Lake State Park Fairfield Beach      6/4/18     Microcystins           14.8
CELINA CITY-TP-LT2001-Raw                     4/17/18    Microcystins           16.2
Buckeye Lake, L-2                                          7/5/18    Microcystins           16.5
CELINA CITY-TP-LT2001-Raw                       3/5/18    Microcystins           16.9
CELINA CITY-TP-LT2001-Raw                     7/10/18    Microcystins           17.71
CELINA CITY-TP-LT2001-Raw                       1/9/18    Microcystins           17.8
Buckeye Lake State Park Fairfield Beach     6/11/18    Microcystins           18.4
CELINA CITY-TP-LT2001-Raw                       7/9/18    Microcystins           19.39
CELINA CITY-TP-LT2001-Raw                       3/6/18    Microcystins           19.6 GLSM

Grand Lake St. Marys, Buckeye Lake and Huron City are the
only locations hitting the 20s
CELINA CITY-TP-LT2001-Raw                    4/15/18      Microcystins         20.6
CELINA CITY-TP-LT2001-Raw                    4/23/18      Microcystins         20.9
Buckeye Lake State Park Fairfield Beach    7/16/18      Microcystins         22.2
CELINA CITY-TP-LT2001-Raw                    4/22/18      Microcystins         23
HURON CITY-TP-LT2001-Raw                      8/7/18      Microcystins         23.1
Buckeye Lake, L-3                                        6/14/18      Microcystins        23.5
CELINA CITY-TP-LT2001-Raw                     4/24/18      Microcystins        25
Buckeye Lake, L-1                                          7/5/18      Microcystins        25.9
CELINA CITY-TP-LT2001-Raw                     5/28/18      Microcystins        26.3
CELINA CITY-TP-LT2001-Raw                     8/19/18      Microcystins        26.8
CELINA CITY-TP-LT2001-Raw                     5/29/18      Microcystins        27.5
CELINA CITY-TP-LT2001-Raw                     7/17/18      Microcystins      27.9
CELINA CITY-TP-LT2001-Raw                     7/16/18      Microcystins        28.9
Buckeye Lake State Park Fairfield Beach     6/18/18      Microcystins        29.4 Buckeye Lake

Grand Lake St. Marys and Buckeye Lake are the only locations hitting the 30s
Buckeye Lake State Park Fairfield Beach   7/30/18       Microcystins      30.1
CELINA CITY-TP-LT2001-Raw                       5/1/18       Microcystins      31.1
CELINA CITY-TP-LT2001-Raw                       6/3/18       Microcystins      31.5
CELINA CITY-TP-LT2001-Raw                       6/5/18       Microcystins      31.8
CELINA CITY-TP-LT2001-Raw                     5/27/18       Microcystins      32.9
Buckeye Lake State Park Fairfield Beach       8/6/18       Microcystins      33.6
Buckeye Lake, L-3                                           7/5/18       Microcystins      34.0
CELINA CITY-TP-LT2001-Raw                      8/20/18       Microcystins      34.5
CELINA CITY-TP-LT2001-Raw                        7/8/18       Microcystins      34.58
CELINA CITY-TP-LT2001-Raw                      7/15/18       Microcystins      36.1
CELINA CITY-TP-LT2001-Raw                        7/2/18       Microcystins      38.6
Buckeye Lake, L-1                                          7/24/18      Microcystins      38.7
CELINA CITY-TP-LT2001-Raw                       7/23/18      Microcystins      38.92
CELINA CITY-TP-LT2001-Raw                       4/29/18      Microcystins      39.8 GLSM

Grand Lake St. Marys and Buckeye Lake are the only locations hitting the 40s
CELINA CITY-TP-LT2001-Raw                      7/22/18       Microcystins      40.28
CELINA CITY-TP-LT2001-Raw                        7/1/18       Microcystins      40.8
Buckeye Lake, L-1                                         6/14/18        Microcystins     42.6
CELINA CITY-TP-LT2001-Raw                      4/30/18       Microcystins      43.4
CELINA CITY-TP-LT2001-Raw                       8/7/18        Microcystins      45.8
CELINA CITY-TP-LT2001-Raw                       6/4/18        Microcystins      45.9
CELINA CITY-TP-LT2001-Raw                       7/3/18        Microcystins      46.2
CELINA CITY-TP-LT2001-Raw                     6/12/18        Microcystins     48.9 GLSM

Grand Lake St. Marys is the only location hitting the 50s
Grand Lake St. Marys, L-1                            6/13/18        Microcystins       50.4
CELINA CITY-TP-LT2001-Raw                       8/6/18        Microcystins       51.4
CELINA CITY-TP-LT2001-Raw                     7/24/18        Microcystins       53.7
CELINA CITY-TP-LT2001-Raw                     6/10/18        Microcystins       54.8
CELINA CITY-TP-LT2001-Raw                     6/11/18        Microcystins       56.1
CELINA CITY-TP-LT2001-Raw                   5/21/18        Microcystins       56.3
CELINA CITY-TP-LT2001-Raw                     5/22/18        Microcystins       58.9 GLSM

Grand Lake St. Marys is the only location hitting the 60s
CELINA CITY-TP-LT2001-Raw                     6/17/18          Microcystins       60
CELINA CITY-TP-LT2001-Raw                     7/30/18          Microcystins       60
CELINA CITY-TP-LT2001-Raw                     5/15/18          Microcystins       61.7
CELINA CITY-TP-LT2001-Raw                     7/31/18          Microcystins       62.4
CELINA CITY-TP-LT2001-Raw                       8/5/18          Microcystins      63.9
CELINA CITY-TP-LT2001-Raw                     7/29/18          Microcystins      65.6
CELINA CITY-TP-LT2001-Raw                     6/26/18          Microcystins      65.9
Grand Lake St. Marys, L-1                            5/30/18          Microcystins      66.2
CELINA CITY-TP-LT2001-Raw                     6/25/18          Microcystins      67.1
CELINA CITY-TP-LT2001-Raw                     8/14/18          Microcystins      67.96
CELINA CITY-TP-LT2001-Raw                       5/8/18          Microcystins      68.8
CELINA CITY-TP-LT2001-Raw                       5/7/18          Microcystins      69.3 GLSM

Grand Lake St. Marys is the only location hitting the 70s
CELINA CITY-TP-LT2001-Raw                    8/12/18           Microcystins       71.36
CELINA CITY-TP-LT2001-Raw                    6/24/18           Microcystins       74.5
CELINA CITY-TP-LT2001-Raw                    5/13/18           Microcystins       76.1
CELINA CITY-TP-LT2001-Raw                    8/13/18           Microcystins       77.64
CELINA CITY-TP-LT2001-Raw                    6/19/18           Microcystins       77.9 GLSM

Grand Lake St. Marys is the only location hitting the 80s
CELINA CITY-TP-LT2001-Raw                     5/6/18             Microcystins       81.9
CELINA CITY-TP-LT2001-Raw                   5/14/18             Microcystins       82.3
CELINA CITY-TP-LT2001-Raw                   5/20/18             Microcystins       82.7
CELINA CITY-TP-LT2001-Raw                   6/18/18             Microcystins       83.2 GLSM

There is a legal opinion that supports the fact that Gov. Kasich's Dept. of Agriculture, Dept. of Natural Resources and OH EPA have knowingly ignored the pollution of Ohio lakes.

Judge slams EPA delays on Lake Erie cleanup
4/13/2018 6:32 PM
Tom Jackson
Staff Reporter

SANDUSKY — A federal judge said the U.S. EPA must clean up Lake Erie and combat algal blooms.
U.S. District Judge James G. Carr said he wants to see indications the federal agency is complying with the Clean Water Act and ordered the agency to turn in status reports by May 15.

The judge’s order, issued this week, was in response to a lawsuit filed by the Environmental Law and Policy Center and Advocates for a Clean Lake Erie. The environmental groups told the judge he should order the U.S. EPA to declare the open waters of Lake Erie as “impaired” under the Clean Water Act.

Since the lawsuit was filed, many of the actions the groups sought have been overtaken by other events.
The U.S. EPA essentially admitted it was in the wrong when it previously approved an Ohio EPA report that failed to determine if all of Lake Erie’s waters are impaired.

And last month, the Ohio EPA released a draft report declaring Lake Erie’s open waters are indeed “impaired.”
The judge’s order scolded both agencies for failing to take action. The Ohio EPA should have determined years ago whether the waters of Lake Erie are “impaired” under the Clean Water Act, and the U.S. EPA should have insisted the state agency follow the law, the judge wrote in his 25-page opinion.

The judge also complained that the U.S. EPA never told anyone it was going to withdraw approval of the state’s previous water quality report. Its action at the last minute, which prevented the judge from making a final ruling, was a “whiff of bad faith,” the judge wrote.

The judge wrote that he’s waiting to see what the final actions of U.S. EPA officials will be and will then review the decision.

A local environmentalist, Rick Graham of Monroeville, said he’s pleased the judge is pushing officials to clean up the lake. Graham is chairman of the Great Lakes committee of the Izaak Walton League, a national environmental group that held its convention in Erie Countyi last year.

After reading the judge’s decision, Graham commented, “The overview of his discussion of the lack of actions indicates a lack of good faith on the part of Ohio Environmental Protection Agency and United States Environmental Protection Agency. It appears that he is ready to hold people accountable for doing their jobs in accord with the Clean Water Act. The fact that he wants an update on or before May 15 is a good sign. I think that he is not going to allow any more delaying tactics.”

Howard Learner, executive director of the Environmental Law and Policy Center, also was happy.

“We’re pleased that the federal district court directed U.S. EPA to comply with the Clean Water Act and make a clear determination within 30 days that Lake Erie’s open waters are impaired by pollution,” Learner said. “The court agreed with our legal position that U.S. EPA and Ohio EPA have improperly dragged their feet for years instead of stepping up to take prompt and necessary actions to protect Lake Erie from toxic algae blooms.”

Reach reporter Tom Jackson at jackson@sanduskyregister.com and follow him on Twitter @jacksontom.

Vertical Divider

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION
Environmental Law and Policy Center, et al., Case No. 3:17CV01514
Plaintiffs,v. OrderUnited States Environmental Protection Agency, et al.

Defendants.
The Water Department of the City of Toledo, Ohio, provides water to about 500,000 persons living in that City and elsewhere in Northwest Ohio. For three days in August 2014, those people were without water. (A.R. 2085).

1 Shortly after the City gave notice that its water was not fit to drink (or use for any other household purpose) bottled water in grocery and convenience stores, gas stations, and other outlets was quickly sold out.
Toledo’s water was contaminated by microcystin–a toxin produced by Harmful Algae Blooms (HABs) growing near the City’s water intake point and elsewhere in the Western Basin of Lake Erie.

Microcystin is dangerous. It “causes diarrhea, vomiting and liver-functioning problems, and readily kills dogs and other small animals that drink contaminated water.”

2 And one need not ingest the toxin to experience ill-effects; the Ohio Environmental Agency (Ohio EPA) reports
1 Citations designated “A.R.” refer to the administrative record.

2 Michael Wines, Behind Toledo’s Water Crisis, a Long-Troubled Lake Erie, The New York Times (Aug. 4, 2014), https://www.nytimes.com/2014/08/05/us/lifting-ban-toledo-says-its-water-is-safe-to-drink-again.html (last visited March 16, 2018).
Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 1 of 25. PageID #: 8997
2 that mere skin contact with a mirocystin-laden HAB can cause “numbness, and dizziness, nausea . . . skin irritation or rashes.” (A.R. 2085).

Over the past decade, HABs have increasingly taken hold in the western third of Lake Erie. Up close, these toxic growths “look like film, crust . . . spilled paint, pea soup,” “or green cottage cheese curd” on the water’s surface.
3
The view from afar is equally dramatic. Lake Erie’s 2015 HAB, for example, “was the largest on record . . . . le[aving] behind a thick, paint-like scum that covered an area roughly the size of New York City” (A.R. 2329):
3 Ohio Environmental Protection Agency, Ohio Algae Information for Recreational Waters, http://epa.ohio.gov/habalgae.aspx#147744472-basics (last visited March 16, 2018).
Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 2 of 25. PageID #: 8998
3
(Image taken from Summary of Ohio’s new HAB Rules and Drinking Water Response Strategy, pg. 11 of 36, Ohio Environmental Protection Agency Webinar published June 7, 2016).4
The principal cause of Lake Erie’s now perennial HAB is phosphorus runoff from fertilizer, farmland manure, and, to a lesser extent, industrial sources, and sewage treatment plant discharges. The Maumee River, boasting the largest drainage area of any Great Lakes river, is the major tributary flowing into the Western Lake Eire Basin. Its watershed encompasses Northwestern Ohio and parts of Northeastern Indiana–with Northwest Ohio’s farmland having a principal role in Ohio’s agricultural industry, among the most important in the State. Other Lake Erie tributaries–the Huron and Vermillion Rivers among them, also drain agricultural areas of Northwest Ohio.
The major federal legislation intended to safeguard these waters is the Clean Water Act (CWA) 33 U.S.C. § 1251 et seq.
The CWA requires the Ohio EPA to submit a biennial Report to the U.S. EPA identifying waters within the State’s borders that fail to meet Ohio’s water quality standards. 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. §§ 130.7(b)(3), (d). The U.S. EPA can approve the Report “only if” the Ohio EPA “assemble[s] and evaluate[s] all existing and readily available water quality-related data and information” concerning these impaired waters, 40 C.F.R. §§ 130.7(d)(2), (b)(5).
For certain limited areas of Lake Erie, the Ohio EPA has done that. The State Agency has, for example, included “portions” of Lake Erie on its list of impaired waters since 2004. (Doc. 26-1, ID 8983). Further, following the 2014 Toledo water crisis, the Ohio EPA also “began
4 The Ohio EPA’s website features images of HABs on various bodies of water dating back to at least 2010.
Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 3 of 25. PageID #: 8999
4
assessing and listing portions of the Lake Erie shoreline,” including some (but not all) of the State’s water intake points as impaired for “public drinking water supply.” (Id.).
But historically, the State has also restricted its testing areas, with “assessment units” extending only “100 meters from the shore,” and encompassing a “500-yard radius” around the public water intake points “associated with the nearest shoreline unit[.]” (Doc. 1-7, ID 141).5 The Ohio EPA has routinely failed to assess Lake Erie’s open waters–those “beyond the shoreline and drinking water intake[]” areas and site of the recurring toxic algae bloom. (Doc. 1-7, ID 164).
Ohio’s persistent failures came to a head in 2016.
That year, in its Report to the U.S. EPA, the Ohio EPA explicitly refused to “assemble and evaluate all existing and readily available water quality-related data and information” concerning Lake Erie’s open waters. 40 C.F.R. § 130.7(b)(5). Its rebuke put the U.S. EPA in a difficult position; the Federal Agency could approve the State’s impaired waters list “only if” the Ohio EPA met its CWA obligations. 40 C.F.R. § 130.7(d)(2). Given the State’s admitted refusal to meet those obligations, an outside observer might have expected the U.S. EPA to disapprove the State’s impaired waters list, and with it, the 2016 Report.
But it did not.
5 To be precise, the Ohio EPA assesses “three shoreline areas of the [L]ake: western (Ohio/Michigan state line to eastern terminus of Sandusky Bay opening to Lake Erie); central (eastern terminus of Sandusky Bay opening to Lake Erie to Ohio/Pennsylvania state line); and Lake Erie islands (including South Bass Island, Middle Bass Island, North Bass Island, Kelleys Island, West Sister Island and other small islands) extending 100 meters from the shore. These assessment units also include Public Drinking Water Supply intake zones (500-yard radius around the intakes) associated with the nearest shoreline unit even if they are greater than 100 meters from the shore.” (Doc. 1-7, ID 141).
Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 4 of 25. PageID #: 9000
5
Instead, the U.S. EPA approved Ohio’s impaired waters list and its 2016 Report, and “deferred to the State’s judgment not to assess the open waters of the Western Basin of Lake Erie,” (A.R. 3371), the same waters where Toledo’s Water Department detected “cyanotoxins . . . recognized to be a hazard to humans, animals and ecosystems” just two years earlier. (A.R. 2728).
Plaintiffs in this case challenge the U.S. EPA’s approval of Ohio’s 2016 impaired waters list under the Administrative Procedure Act (APA). See 5 U.S.C. § 704. They dispute the continuing failure of the Ohio EPA and the U.S. EPA to perform their mandatory duties under the CWA, if not entirely, then at least rigorously and effectively.
Pending are the parties’ counter-motions for summary judgment. (Docs. 18, 21, 22).
I begin my adjudication of the motions with an overview of the CWA’s requirements and the Agencies’ substantial noncompliance, beginning in 2012, with those requirements. Next, I relate developments in this case since shortly before the plaintiffs filed their motion and thereafter.
For the reasons that follow, I: 1) deny plaintiffs’ motion for summary judgment, without prejudice; 2) hold my ruling on defendants’ motion for summary judgment in abeyance; 3) remand, while retaining jurisdiction over this case, to the U.S. EPA for action consistent with this Order; and 4) timetable dates for status report(s) and a status conference.
1. Statutory and Regulatory Background
The CWA “is a comprehensive water quality statute designed to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’” PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704 (1994) (quoting 33 U.S.C. § 1251(a)). A Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 5 of 25. PageID #: 9001
6
cooperative statute, the CWA “establishes distinct roles for the Federal and State Governments” in reducing pollution. Id.
On the federal level, “the Administrator of the Environmental Protection Agency . . . is required, among other things, to establish and enforce technology-based limitations on individual discharges into the country’s navigable waters from point sources.” Id. (citing 33 U.S.C. §§ 1311, 1314). Not all pollutants, however, enter the water through “discernable . . . and discrete” point sources, such as discharges from industrial pipes or sewerage treatment plants. Am. Paper Institute, Inc. v. EPA, 996 F.2d 346, 349 (D.C. Cir. 1993) (citing 33 U.S.C. § 1362(14) (brackets omitted)); see also Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp.2d 210, 214 (D. D.C. 2011).
“Sediments and other biological materials can easily accumulate in rivers through normal ecological processes,” such as erosion and drainage. Anacostia Riverkeeper, 798 F. Supp.2d at 214. “Many toxins,” including phosphorous, can also “enter[] water systems through runoff from agricultural land.” Id. “Unlike point source pollutants, EPA lacks the authority to control [these] non-point source discharges through a permitting process.” Defenders of Wildlife v. EPA, 415 F.3d 1121, 1124 (10th Cir. 2005). Congress instead assigned that task to the states, who enjoy “the primary responsibilit[y] and right[] . . . to plan the development and use of [their] land and water resources.” 33 U.S.C. § 1251(b).
CWA § 303 requires states “to institute comprehensive water quality standards establishing water quality goals for all intrastate waters.” PUD No. 1, 511 U.S. at 704 (citing 33 U.S.C §§ 1311(b)(1)(C), 1313)). A state’s water quality standards “have two primary components:” first, “designated ‘uses’ for a body of water (e.g., public water supply, recreation, Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 6 of 25. PageID #: 9002
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agriculture)” and second, a set of water quality “‘criteria’ specifying the maximum concentration of pollutants that may be present in the water without impairing its suitability for designated uses.” Am. Paper, 996 F.2d at 349 (citing 33 U.S.C. § 1313(c)(2)(A)).
A lake’s “designated use” is exactly what it sounds like–a description of “the manner in which . . . waters are to be utilized by governments, persons, animals, and plants.” Anacostia Riverkeeper, 798 F. Supp.2d at 215 (footnote omitted). Ohio EPA, for instance, designates Lake Eire for use as an “exceptional warmwater habitat,” a “public water supply, agricultural water supply, industrial water supply,” and for recreational “bathing.” Ohio Admin. Code § 3745-1-31(A).
“Water quality criteria, on the other hand, are measures of the conditions of a water body.” Anacostia Riverkeeper, 798 F. Supp.2d at 215. They can be expressed either as “specific numerical limitations on the concentration of a specific pollutant in the water (e.g., no more than .05 milligrams of chromium per liter) or more general narrative statements applicable to a wide set of pollutants (e.g., no toxic pollutants in toxic amounts.).” Am. Paper, 996 F.2d at 349 (footnote omitted). Most relevant to the instant dispute is Ohio’s narrative criteria regarding algae, which declares that “all surface waters . . . shall be . . . [f]ree from nutrients entering the waters as a result of human activity in concentrations that create nuisance growths of aquatic weeds and algae.” Ohio Admin. Code § 3745-1-04(E).
Regardless of whether they are numeric or narrative, the “key aspect of water quality criteria is that they are dependent upon designated uses associated with them.” Anacostia Riverkeeper, 798 F. Supp.2d at 215. States “must,” in other words, “adopt those water quality Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 7 of 25. PageID #: 9003
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criteria” sufficient to “protect the designated use” assigned to a water body. 40 C.F.R. § 131.11(a).
Once a state establishes water quality standards, it must also “compile a list of waters . . . that do not meet those standards,” known as a “§ 303(d) list” or an impaired waters list. Thomas v. Jackson, 581 F.3d 658, 661 (8th Cir. 2009) (citing 33 U.S.C. § 1313(d)); see also Blue Water Baltimore v. Pruitt, 266 F. Supp.3d 174, 176 (D. Md. 2017). Naming a particular body of water an “impaired” water is significant because it triggers a further obligation: “For each water on the § 303(d) list, the state must establish total maximum daily loads,” (TMDLs) “of certain ‘pollutants’ that the water can sustain without exceeding water quality standards.” Thomas, 581 F.3d at 662 (citing 33 U.S.C. §§ 1313(d)(1)(C), 1362(6)).
States identify their impaired waters and establish their TDMLs by “submitting biennially an Integrated Report to the EPA.” Blue Water Baltimore, 266 F. Supp.3d at 176. Developing the Integrated Report is an interactive process, which, by law, must include public participation–“that part of the decision-making process through which responsible officials become aware of public attitudes.” 40 C.F.R. § 25.3(b).
During reporting years, Ohio EPA invites public participation by releasing a draft of its Integrated Report for a period of public comment. After affording “ample opportunity for interested and affected parties to communicate their views,” id., the State Agency considers the public comments, revises the Report and submits the final version to the U.S. EPA.
Within thirty days of submission, the U.S. EPA must then either approve or disapprove the state’s § 303(d) list. 33 U.S.C. § 1313(d)(2).
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While the U.S. EPA has a measure of discretion in approving or disapproving a state’s impaired waters list, regulations under the CWA limit its discretion: the Agency “shall approve a list developed under [§ 303(d)] that is submitted . . . only if it meets the requirements of § 130.7(b).” 40 C.F.R. § 130.7(d)(2) (emphasis added). One of those requirements is that the state “assemble and evaluate all existing and readily available water quality-related data and information” regarding the listed impaired waters. 40 C.F.R. § 130.7(b)(5) (emphasis added).6
If the state’s § 303(d) list successfully “assemble[s] and evaluate[s] all” relevant data, and the U.S. EPA approves it, the state “shall incorporate” the § 303(d) list and any TDMLs “into its current continuing planning process.” Hayes v. Whitman, 264 F.3d 1017, 1021 (10th Cir. 2001) (quoting 33 U.S.C. § 1313(d)(2) (brackets omitted)).
If, on the other hand, the U.S. EPA disapproves the list, the federal government must, per the CWA, assume the state’s responsibilities, so that the U.S. EPA must “identify [the impaired] waters in [the s]tate and establish” its TMDLs “no[] later than thirty days after the date of such disapproval.” Blue Water Baltimore, 266 F. Supp.3d at 177 (quoting 40 C.F.R. § 130.7(d)(2)).
Maintaining that the U.S. EPA wrongly approved Ohio’s 2016 § 303(d) list, plaintiffs urge me to set aside that approval, order the Agency to disapprove Ohio’s § 303(d) list, “and
6Alternatively, 40 C.F.R. §130.7(b)(6)(iii) permits a state to offer “rationale for any decision not to use any existing and readily available data and information” regarding its impaired waters, subject to EPA approval. “However,” as the U.S. EPA has said, “a state’s decision not to rely on such data or information for a listing decision is separate from its threshold obligation to assemble and evaluate all existing and readily available water-quality related information.” (Doc. 19-1, ID 8896).
As previously noted, the Ohio EPA expressly refused to “assemble and evaluate all existing and readily available water quality-related data and information” regarding Lake Erie’s open waters in its 2016 impaired waters list. 40 C.F.R. § 130.7(b)(f). Even so, the U.S. EPA approved it, along with Ohio’s 2016 Integrated Report.
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identify the open waters of Lake Erie as impaired within [thirty] days of disapproval as required by Section 303(d) of the Clean Water Act.” (Doc 1, ID 37).
2. Ohio’s Noncompliance With the CWA
Although the instant dispute concerns Ohio’s 2016 impaired waters list, the State’s hesitance in deciding whether to declare the open waters of Lake Erie impaired dates back to 2012.
That year, the U.S. EPA saved the Ohio EPA the trouble of independently investigating Lake Erie’s open waters by providing it with “water quality-related” data the EPA already collected from the area. Nevertheless, “[a]fter careful consideration,” the Ohio EPA “decided not to add Lake Erie to the 2012 [§] 303(d) list because the data were not received by the submission date for consideration of external data,” and Ohio EPA had “no methodology” to evaluate it. (Doc. 26-1, ID 8987). The Ohio EPA assured the U.S. EPA that it would “consider” listing the Lake’s open waters as impaired during the next cycle, in its 2014 Integrated Report. (Id.).
However, in disregard of that express assurance, the Ohio EPA did not do so.
Instead, Ohio’s 2014 Report listed the Lake Erie shoreline as impaired due to excess microcystin, but the State’s “Section 303(d) list . . . d[id] not include the waters beyond the shoreline . . . where the Toledo and Oregon [water] intakes are located,” even though “[s]ampling results from water intakes for Toledo and Oregon . . . exceed[ed] Ohio’s microcystin threshold.” (A.R. 2713) (emphasis supplied).
The U.S. EPA sent a letter to the Ohio EPA on August 7, 2015,7 pointing out this discrepancy, and “partial[ly]” approving the 2014 Integrated Report. The Federal Agency told
7 The EPA sent its letter just over a year after Toledo’s three-day water crisis had ended on August 3, 2014.
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Ohio it was “deferring its final decision on whether the waters beyond the shoreline . . . should be on Ohio’s Section 303(d) list for impairment of . . . designated use [as a public water supply] due to microcystin.” (Id.). Notably, the U.S. EPA specifically attributed its deferral to Ohio’s promise to add more assessment units “that would expand coverage to all drinking water intakes in the [Western Lake Erie Basin] for the next listing cycle.” (Id.).
Elsewhere in the letter, the U.S. EPA also “note[d] that Ohio ha[d] not assessed Lake Erie with respect to the State’s narrative criteria at OAC 3745-01-04(E), prohibiting . . . nuisance growths of algae created by nutrients entering the water as a result of human activity.” (A.R. 2728). “Given the prevalence of HABs” on Lake Erie, the U.S. EPA urged the State “to develop a methodology for assessing . . . the nuisance algal growth narrative water quality criteria.” (Id.) It also instructed Ohio to “consider the impact of HABs and nuisance algal growth on aquatic life use, in addition to the impacts on recreational use,” as part of its “future assessment[s].” (Id.).
Finally, the U.S. EPA reiterated in its August 7, 2015 letter that it “expect[ed] Ohio EPA to fully assess the ten [assessment units] for Lake Erie and to assemble and evaluate all existing and readily available data, including EPA data, for the 2016 integrated report and listing cycle.” (A.R. 2727).
The Federal Agency had, in effect, given Ohio a pass despite the deficiencies in the State’s 2012 and 2014 § 303(d) lists. Doing so, the U.S. EPA also gave the Ohio EPA both the opportunity and a mandate to cure those deficiencies and otherwise fulfill its CWA obligations.
Yet in the years that followed, Ohio ignored that opportunity and its duties.
To be sure, in the draft 2016 Integrated Report, Ohio EPA listed, in light, no doubt, of the 2014 Toledo water crisis, its Lake Erie shoreline “assessment units” as impaired “for aquatic life Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 11 of 25. PageID #: 9007
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use, public drinking water use and human health (fish contaminants).” But the Ohio EPA, playing a game of administrative pushball, expressly declined “to pursue development of the open water assessment units and methods at this time.” (A.R. 3451). Rather, because Lake Erie “is bordered by four states and one Canadian province,” “Ohio EPA believe[d] that assessment and listing of the open waters under the CWA should be led by U.S. EPA in consultation with the states.” (Id. at 3450-51).
This “belie[f]” is contrary to the CWA, which assigns to the “states . . . the primary role . . . in establishing water quality standards.” Natural Resources Defense Council, Inc. v. EPA, 16 F.3d 1395, 1401 (4th Cir. 1993) (citation omitted) (emphasis partially supplied). The Federal “EPA’s sole function, in this respect, is to review those standards for approval”; it steps in to establish water quality standards on a state’s behalf not as a first step, but only as a last resort, when the state has failed to do so. Defenders of Wildlife, supra, 415 F.3d at 1124 (citation omitted). Such a process is “consistent with the basic goals and policies that underlie the Clean Water Act–namely, that states remain at the front line in combating pollution.” Barnum Timber Co v. EPA, 835 F. Supp.2d 773, 780–81 (N.D. Cal. 2011) (quoting City of Arcadia v. EPA, 411 F.3d 1103, 1106 (9th Cir. 2005)).
The U.S. EPA explained as much in an August 29, 2016 letter to the Ohio EPA rejecting the draft 2016 impaired waters list and the State’s “belie[f]” that the U.S. EPA should do all the heavy lifting:
We note that the responsibility to assess Ohio’s waters, including the State’s open waters of Lake Erie, and determine whether or not they are meeting Ohio’s water quality standards, is specifically a state responsibility under the CWA. . . EPA’s role is to review and either approve or disapprove the state’s list of impaired waters.
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(A.R. 2469 (statutory and regulatory citations omitted)).
In the same letter, the U.S. EPA directed Ohio to “assess all of its waters in the Western and Central Basins of Lake Erie for all applicable water quality standards,” including the state’s own narrative criteria prohibiting “nuisance” algae:
Such standards should include numeric criteria, narrative criteria, water body uses and antidegradation requirements. In particular the state should assess against its narrative standard at [OAC] 3745-1-04(E):
The following general water criteria shall apply to all surface waters of the state including mixing zones. To every extent practical and possible as determined by the director, these waters shall be . . . (E) Free from nutrients entering the waters as a result of human activity in concentrations that create nuisance growths of aquatic weeds and algae.
(Id.).
Ohio refused.
In a September 30, 2016 responsive letter, Ohio reiterated its “firm and consistent position” that “all states and countries surrounding and contributing to the problems in Lake Erie should, with leadership from our national EPA, develop a coordinated response.” (A.R. 2473). It dismissed the U.S. EPA’s request to develop its own standards as “absurd.” (Id. at 2474).
The Ohio EPA submitted its final 2016 Integrated Report to the U.S. EPA on October 20, 2016. (A.R. 3349). Like the initial draft, the final Report listed only the shoreline units of Lake Erie as impaired, and reasserted Ohio’s refusal to assess the Lake’s open waters. (Doc. 1-7, ID 145).
3. The U.S. EPA Response to the 2016 Final Report:
Compounding Inaction with More Inaction
The Ohio EPA was not alone in its noncompliance with its statutory mandate.
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Although the CWA requires the U.S. EPA to approve or disapprove a state’s § 303(d) list within thirty days, see 33 U.S.C. § 1313(d)(2), the U.S. EPA, in response to Ohio’s 2016 impaired waters list, did neither.
Despite Ohio’s unmistakable failure to do what it promised the U.S. EPA it would do after 2014, and what the U.S. EPA itself told Ohio to do following receipt of the 2016 draft Report, the U.S. EPA did not act on Ohio’s final 2016 Integrated Report or its § 303(d) list at all for nearly five months. When the U.S. EPA finally did act, it was clear that, so far as the Agency was concerned, none of Ohio’s persistent failings mattered: on March 31, 2017, the Federal Agency sent notice to the Ohio EPA that it would proceed with “formal approval under a separate [forthcoming] letter.” (A.R. 3349).
The Agency’s notice forthrightly acknowledged that “Ohio has yet to assess the open waters of Lake Erie for algal impairment,” but expressed its “understanding and expectation that Ohio will continue to evaluate options to assess open waters of the Western Basin of Lake Erie based on relevant information, including microcystin data, for the 2018 [§] 303(d) list.” (Id.).
4. The Course of This Litigation
After nearly another two months had passed without any “separate” “formal approval” letter from the U.S. EPA, plaintiffs the Environmental Law andPolicy Center, Michael Ferner, and Susan Matz filed their first suit against the U.S. EPA, its Administrator Scott Pruitt, and Acting Regional Administrator, Scott Kaplan.
In their complaint, plaintiffs alleged the “U.S. E.P.A. [wa]s in violation of the CWA because it failed to perform its nondiscretionary duty to approve or disapprove Ohio EPA’s [§] 303(d) List within 30 days after the date of submission.” See Environmental Law and Policy Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 14 of 25. PageID #: 9010
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Center et al. v. EPA, et al., No. 3:17-cv-01032 (N.D. Ohio) (Doc. 1, ID 11). They sought an order compelling the U.S. EPA to either approve or disapprove Ohio’s 2016 impaired waters list as statutorily required.
As sometimes happens, filing suit got results–sort of: two days after plaintiffs filed their complaint, the U.S. EPA issued its formal approval, which “deferred to the State’s judgment not to assess the open waters of the Western Basin of Lake Erie for the 2016 list.” (A.R. 3371). With the U.S. EPA’s decision now final, plaintiffs voluntarily dismissed their initial complaint, which the Agency’s action had mooted.
Two months later, plaintiffs filed the present suit against the same defendants.
This time around, plaintiffs challenge the substance of the U.S. EPA’s decision to approve Ohio’s 2016 impaired waters list despite the State’s failure to assess Lake Erie’s open waters. The U.S. EPA’s approval of the Ohio Report is unsustainable, plaintiffs contend, because the Ohio EPA refused to “assemble and evaluate all existing and readily available water-quality related data and information” concerning the Lake. See 40 C.F.R. § 130.7(b)(5). And, because the U.S. EPA could approve Ohio’s § 303(d) list “only if” the State met that requirement, see 40 C.F.R. § 130.7(d)(2), plaintiffs maintain the U.S. EPA’s approval of Ohio’s 2016 impaired waters list was arbitrary and capricious–in laymen’s terms, indisputably wrong.
On receiving the case, I set a January 16, 2018 deadline for summary judgment motions.
Then, on January 15, 2018, a federal holiday, and the day before that deadline, the U.S. EPA notified plaintiffs’ counsel that it had “reevaluated [Ohio EPA’s] submission and determined that the submission is incomplete and thus not fully consistent with the requirements of Section 303(d) of the Clean Water Act.” Accordingly, the U.S. EPA stated that it was
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“withdrawing the . . . approval [decision]
specifically with respect to the open waters of Lake Erie.” (Doc. 19-1, ID 8896) (Withdrawal Letter). 8
Confessing its error, the U.S. EPA’s Withdrawal Letter adopted and endorsed the same argument plaintiffs laid out in their complaint: “Specifically, the State’s submission does not demonstrate that the State has satisfied its statutory and regulatory obligations to assemble and evaluate all existing and readily available data and information regarding nutrients in the open waters of Lake Erie within the State’s boundaries.” (Id.).
Even so, the U.S. EPA was remarkably willing to give Ohio yet another unearned chance to do what it should have done almost six years ago: “consistent with its obligations” under the CWA, the Federal Agency once again asked the Ohio EPA to evaluate and assemble all existing and readily available data “and submit the results of that evaluation . . . including, if appropriate, an assessment of whether the waters are meeting the applicable water quality standards” to the U.S. EPA by April 9, 2018, so that it could reconsider its initial approval. (Id. at 8897).
In view of the U.S. EPA’s sudden about face, I requested supplemental briefing and scheduled oral argument.
8 I am concerned, first, that the U.S. EPA did not inform plaintiffs that it was withdrawing its approval of Ohio’s 2016 § 303(d) list until the eleventh hour and fifty-ninth minute before their motion for summary judgment was to be filed.
I am concerned, second, that the U.S. EPA did not inform me that it was withdrawing its approval of Ohio’s 2016 § 303(d) at all, either formally through a court filing or informally by email or otherwise. I only learned about the Agency’s action after plaintiffs’ counsel notified the Clerk about this significant change in circumstances. Defendants’ oversight amplifies the whiff of bad faith arising from the timing of its inexplicably delayed notice to plaintiffs’ counsel.
Moreover, as the Agency well knew, by withdrawing its approval, there is no final Agency action subject to judicial review under the APA, which prevents me from adjudicating the merits of the plaintiffs’ motion for summary judgment.
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On the date of the argument, March 6, 2018, unbeknownst to counsel or me, the Ohio EPA responded to the U.S. EPA’s request for further information. The March 6 letter gave no additional “existing and readily available” water quality-related data or information, but said the Ohio EPA was developing a system to “assess[] the open waters of Lake Erie in [its] upcoming 2018 Integrated Report.” (Doc. 26-1, ID 8983).
5. Discussion
“The only recognized avenue for challenge to the substance of EPA’s actions taken with respect to state [§ 303(d) list] submissions is a suit under the Administrative Procedure Act.” Scott v. City of Hammond, 741 F.2d 992, 995 (7th Cir. 1984) (per curiam). That is the nature of the claim plaintiffs assert here.
Section 706 of the APA directs me to “set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Plaintiffs argue that the U.S. EPA’s decision to approve Ohio’s 2016 impaired waters list was arbitrary and capricious, especially in light of the Agency’s years-long tolerance of incomplete 2012 and 2014 lists. This is so, plaintiffs contend, because Ohio failed (indeed, expressly refused) to “assemble and evaluate all existing and readily available water quality-related data and information” regarding Lake Erie’s open waters see 40 C.F.R. § 130.7(b)(5). The U.S. EPA could approve the State’s § 303(d) list “only if” Ohio satisfied this requirement, see 40 C.F.R. § 130.7(d)(2). Since the State Agency did not do so, plaintiffs maintain that the U.S. EPA’s approval of Ohio’s 2016 impaired waters list was in error.
Plaintiffs make a forceful point.
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Here, the U.S. EPA approved Ohio’s § 303(d) list while concurrently acknowledging that Ohio “has yet to assess the open waters of Lake Erie for algal impairment,” and thus, “has yet” to assemble and evaluate all existing and readily available data regarding Lake Erie’s open waters. Even if not arbitrary and capricious, that decision raises considerable doubt as to whether it is “in accordance with the law,” 5 U.S.C. § 706(2)(A), which permits the U.S. EPA to approve the list “only if” 40 C.F.R. § 130.7(d)(2), Ohio first assembles and evaluates such data, which Ohio admittedly did not do.
The problem is, however, that the U.S. EPA revoked that action when it issued the Withdrawal Letter–“withdrawing the . . . approval [decision] specifically with respect to the open waters of Lake Erie.” (Doc. 19-1, ID 8896). The present status of this case therefore leaves me without a final agency action to review–and a plaintiff “does not state a viable [APA] claim against the EPA” absent a disputed “final agency action.” Marquette Cty. Rd. Comm’n v. EPA, 188 F. Supp.3d 641, 646–47 (W.D. Mich. 2016); see also 5 U.S.C. § 704.9
Seeking to overcome the impediment that the lack of a final agency action erects, plaintiffs make two arguments. Neither persuades me to somehow go over, under, or around that statutory barrier.
First, they contend the U.S. EPA’s Withdrawal Letter is not a withdrawal for reconsideration, but instead a de facto and de jure final action and judicially reviewable disapproval. This is so, they argue, because the statue’s plain terms give the U.S. EPA only two
9 More specifically, APA §704 authorizes judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. The U.S. EPA’s approval of Ohio’s 2016 impaired waters list is a “final agency action for which there is no other adequate remedy in court,” id., as neither party contends that the Agency’s decision is reviewable by statute. See also Scott, supra, 741 F.2d at 995–96.
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options: “The Administrator shall either approve or disapprove” a state’s § 303(d) list “not later than thirty days after the date of submission.” 33 U.S.C. § 1313(d)(2) (emphasis added).
10
I cannot agree.
For one, the U.S. EPA enjoys inherent authority to reconsider prior decisions. Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 416 (6th Cir. 2004). “Even where there is no express reconsideration authority [in the governing statute], the general rule is that an agency has inherent authority to reconsider its decision, provided that reconsideration occurs within a reasonable time after the first decision.” Belville Mining Co. v. United States, 999 F.2d 989, 997 (6th Cir. 1993).11 While I may not approve of the U.S. EPA’s handling of
10 If the U.S. EPA’s Withdrawal Letter were a statutory disapproval, plaintiffs, I am sure, would not want me to vacate that decision, but merely affirm it and remand back to the U.S. EPA with an order directing defendants to “identify [impaired] waters in . . . [Ohio] and establish” TDMLs “for such waters.” 33 U.S.C. § 1313(d)(2).
11 Plaintiffs’ counsel claimed at oral argument that the seven-month delay between the U.S. EPA’s approval of the 2016 Integrated Report, and its withdrawal of approval went well beyond the “reasonable” window for reconsideration. The weight of the factual circumstances favor her argument.
The U.S. EPA had reason to apprehend that Ohio’s 2016 § 303(d) list was legally insufficient shortly after Ohio filed it on October 20, 2016. After all, the U.S. EPA had earlier reviewed the draft 2016 Report and sent the Ohio EPA a detailed letter instructing the Sate Agency to assemble and evaluate all existing and readily available water quality-related data relative to Lake Erie’s open waters and algal growths. In response, the Ohio EPA rejected that instruction outright. It then submitted its 2016 final Integrated Report repeating the same § 303(d) list discussion from the draft Report.
Instead of disapproving Ohio’s incomplete impaired waters list, or taking any other appropriate action under the CWA, the U.S. EPA took roughly five months to issue an unfounded decision “formal[ly] approv[ing]” the list, and then another seven months to withdraw the approval. And, in each instance, plaintiffs’ lawsuits triggered the Federal Agency’s actions.
However, precedent cautions against doing as plaintiffs ask and concluding that the earlier approval still stands. The “reasonable time” measure runs from the date of the agency’s initial Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 19 of 25. PageID #: 9015
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Ohio’s 2016 Integrated Report, I “prefer[] to allow agencies to cure their own mistakes rather than wasting the courts’ and the parties’ resources.” Minetau, 375 F.3d at 417 (citation omitted).
For another, even if I agreed that the EPA’s withdrawal is a disapproval in the colloquial sense,12 I cannot agree that, de jure, it constitutes a “final agency action” for APA purposes. See 5 U.S.C. § 704.
An agency action is “final” if it “mark[s] the ‘consummation’ of the agency’s decisionmaking process,” and if it is “one by which ‘rights or obligations have been determined,
decision, to its notice of suspension and reconsideration. Belville Mining v. United States, 999 F.2d 989, 1000–01 (6th Cir. 1993). Where an agency’s “attempt[] to correct legally erroneous . . . determinations that, left uncorrected, would be vulnerable to court challenge . . . [is] the basis for reconsideration,” the Sixth Circuit has said eight months is not an unreasonable period of time to reconsider a decision. Id. at 997–1000.
Moreover, while the conduct of the U.S. EPA vis-à-vis Ohio’s 2016 Integrated Report manifested an apparently obdurate determination not to do its job, two circumstances persuade me that remand is the best course in this case.
First, it is the most prudent option. If I were to find that, despite the Withdrawal Letter, the initial approval stands as the Agency’s final action, an appeal and yet more delay would likely follow, regardless of whether I vacated or affirmed the Agency’s decision.
Another reason is that remand may well lead to the result the plaintiffs have sought all along: disapproval of Ohio’s 2016 impaired waters list. In giving credit to that possibility, I accept statements by the Federal Agency’s lawyers, who themselves suggested remand during oral argument, as a signal that there is good reason to expect that remand will lead to disapproval of Ohio’s 2016 impaired waters list. If so, after years of inaction by both the State and Federal EPAs, proverbial first step of a 1000 mile journey will have, at long, and long overdue last, have been taken.
12 The Withdrawal Letter states the “EPA has reevaluated the State’s submission and determined that the submission is incomplete and thus not fully consistent with the requirements of” the CWA. (Doc. 19-1, ID 8896) (emphasis supplied). If the U.S. EPA has already “reevaluated” Ohio EPA’s submission and found it “incomplete,” and inconsistent with the CWA, then what’s left to “reconsider”? Nonetheless, I accede to the Agency’s assertion that, whatever it is doing, it is within the lawful ambit of its “inherent authority” to reconsider its prior actions. Minetau, supra, 375 F.3d at 416–17.
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or from which ‘legal consequences will follow.’” Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 495–96 (6th Cir. 2014) (citations omitted). The U.S. EPA’s Withdrawal Letter is neither.
It is not the “consummation” of the U.S. EPA’s decisionmaking process, because it calls for Ohio to submit further information, after which the U.S. EPA intends to issue a further approval or disapproval decision. Nor is the Withdrawal Letter an action from which “legal consequences will follow”–legal consequences will follow only after the U.S. EPA issues a final approval or disapproval, at which point either the Ohio EPA will implement the restrictions from the approved 2016 § 303(d) list, or the U.S. EPA shall begin the process of “identify[ing] such [impaired] waters in [Ohio],” and establishing their TMDLs. 33 U.S.C. § 1313(d)(2). As it now stands under the Withdrawal Letter, no “rights or obligations have been determined.” Jama, supra, 760 F.3d at 495–96 (citation omitted).
Plaintiffs alternatively reason that if the withdrawal is not a final action, then it must constitute further inaction, which is grounds for a “citizen suit” against Administrator Pruitt for failing to discharge his nondiscretionary, mandatory duty to choose between his binary options to approve or disapprove Ohio’s § 303(d) list within thirty days of submission. See 33 U.S.C. §§ 1313(d)(2), 1365(a)(2).13
While that may be correct, it is not the claim plaintiffs’ asserted in their pending complaint, and plaintiffs are not entitled to bring new causes of action in response to defendants’
13 Under the CWA, “any citizen may commence a civil action on his own behalf . . . against the Administrator where there is an alleged failure of the Administrator to perform any [nondiscretionary] act or duty.” 33 U.S.C. § 1365(a)(2). This is the avenue plaintiffs pursued in their initial suit against defendants when the U.S. EPA failed (for nearly five months) to approve or disapprove Ohio’s 2106 impaired waters list.
Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 21 of 25. PageID #: 9017
22
counter
-motion for summary judgment. Tucker v. Union of Needletrades, Industrial and Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005).
Even more to the point, plaintiffs cannot sue the U.S. EPA for failing to discharge a nondiscretionary duty without first giving sixty days’ notice of the alleged violation to “the [EPA] Administrator,” the “State in which the alleged violation occurs,” and “any alleged violator.” 33 U.S.C. § 1365(b)(1)(A). Strict “compliance with the[se] notice and delay provisions . . . is a mandatory condition precedent to the commencement” of a citizen suit. Historic Green Springs, Inc. v. Louisa Cty. Water Auth., 833 F. Supp.2d 562, 565 (W.D. Va. 2011) (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 399 (4th Cir. 2011)). Because plaintiffs did not provide sixty days’ notice before initiating this suit, they cannot now transform their APA claim into a CWA claim for failure to perform a nondiscretionary duty.
There presently being no final agency action to review, plaintiffs cannot prove an essential element of their claim. See, e.g., Marquette Cty. Rd. Comm’n, supra, 188 F. Supp.3d at 658 (“Plaintiff fails to state a claim against the EPA . . . because the EPA’s actions are not reviewable under the APA.”). What’s more, with no authority to direct the U.S. EPA to act on Ohio’s 2016 § 303(d) list, I cannot at this point order the relief they seek in any event. For these reasons, I deny plaintiffs’ motion for summary judgment.
Conclusion
Defendants’ legal maneuvering prevents me from ruling on the merits in this case, but Ohio’s “incomplete” “Section 303(d) List submission” remains pending before the U.S. EPA for either final approval or disapproval. (Doc. 19-1, ID 8896). Thus, I have authority to “remand the Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 22 of 25. PageID #: 9018
23
case to the agency so that the agency may take further action consistent with the correct legal standards.” Mineta, supra, 375 F.3d at 416 (citation omitted).
On March 6, 2018, the Ohio EPA responded to the U.S. EPA’s request for further information, giving the Federal Agency nothing further to consider.14 The State’s § 303(d) list therefore stands as initially submitted in Ohio’s 2016 Integrated Report, with the March 6 letter triggering the U.S. EPA’s thirty-day-timeline for approval, or disapproval of the 2016 impaired waters list. 33 U.S.C. § 1313(d)(2); 40 C.F.R § 130.7(d)(2).
Unfortunately, however, the initial thirty-day-timeline (which would have ended April 5, 2018,) has already passed. And I acknowledge the uncertainty of the present litigation may have interfered with the U.S. EPA’s decisionmaking procedures.
Accordingly, I permit the U.S. EPA to render its approval or disapproval of Ohio’s 2016 § 303(d) list within thirty days of the date I enter this order. I anticipate that the U.S. EPA “shall” timely comply with this statutory duty, 33 U.S.C. § 1313(d)(2) (emphasis added), and I remand to the Agency to move forward with that process.
14 I take judicial notice of Ohio’s March 6 2018 letter, and incorporate it by reference into the record in anticipation that the U.S. EPA will consider it on remand. I do the same for Michigan’s 2016 Integrated Report, which “designated [Michigan’s] entire contiguous portion of Lake Erie as impaired . . . based on ‘persistent significant algal blooms’ . . . causing ‘nuisance conditions related to nutrient expression.’” (Doc. 18, ID 8721). Further, I also take notice that on March 22, 2018, the Ohio EPA released its draft 2018 Integrated Report for public comment. (See Doc. 28). Finally, for the first time an Ohio EPA Report, whether draft or final, “is proposing to designate the open waters of Lake Erie’s Western Basin . . . as impaired for recreation due to harmful algae and drinking water due to occurrences of microcystin.” See Ohio Environmental Protection Agency News Release, Ohio EPA Issues Latest Water Quality Report (March 22, 2018) http://epa.ohio.gov/News/OnlineNewsRoom/NewsReleases/TabId/6596/ArticleId/1300/language/en-US/ohio-epa-issues-latest-water-quality-report-2018.aspx (last accessed April 5, 2018).
Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 23 of 25. PageID #: 9019
24
In the meantime, I retain jurisdiction over this suit and all matters affecting it.
15 Concurrently, I withhold my ruling on defendants’ counter-motion for summary judgment.
15 I consider remand and retention of jurisdiction to be appropriate so that I can undertake judicial review under the APA, if needed, following whatever action the U.S. EPA takes.
Ohio’s final 2018 Report may, or may not complete the volte face as to the listing of Lake Erie’s open waters as impaired in its draft 2018 Report. In the meantime, however, many months may pass between the close of the public comment period (now set for May 4, 2018,) and the State Agency’s submission of the final 2018 Report to the U.S. EPA.
Further, even if Ohio finally completes an about face as to its 2018 impairment listing, that does not moot or reduce the need for me to retain jurisdiction. See Anacostia Riverkeeper, Inc. v. Jackson, 713 F. Supp.2d 50, 51 n.1 (D.D.C. 2010) (claims challenging agency action are mooted only when the agency takes subsequent action superceding the disputed decision). If the U.S. EPA disapproves the 2016 listing, that should get the TMDLs determination process underway (and done, in light of the thirty-day deadline for completion of that process see 33 U.S.C. § 13133(d)(2); 40 C.F.R. § 130.7(d)(2)) sooner than it would following approval of a 2018 impairment listing in Ohio’s 2018 Report.
Moving sooner, even relatively slightly, rather than later matters. TMDL determination is but the first step; thereafter, restoration and remediation of Lake Erie to Ohio’s water quality standards, could, according to U.S. EPA counsel at oral argument, take from eight to twenty-three years. Remediation of farmland runoff, the primary source of the Lake’s algae/microsystin problem, is vastly more difficult than remediation of point source pollution. Thus, for this reason, at least, the 2016 listing remains at issue.
Finally, I take judicial notice that in 1988, the Ohio General Assembly prohibited the sale of “household laundry detergent[s] containing phosphorus in any form in excess of one-half percent by weight,” effective “January 1, 1990.” Ohio Rev. Code § 6111.10. Likewise, in 2008 the General Assembly imposed a similar prohibition against the sale of phosphorus-containing dishwashing detergents effective “July 1, 2010.” Ohio Rev. Code § 6111.11.
Legislative action of this sort appears to be the most expeditious and effective means of accomplishing the goals of the CWA. More importantly, it could probably do so in substantially less time than the potential twenty-three years it will otherwise take. Just as science and industry appear to have worked together to meet the two-year deadlines set by the General Assembly for limiting phosphorus in household cleaning products, one would hope science and agriculture could also work together to reduce phosphorus in fertilizers, within a deadline the General Assembly with due deliberation could set.
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It is, therefore,
ORDERED THAT:
1. Plaintiffs’ motion for summary judgment (Docs. 18, 21) be, and the same hereby is, denied, without prejudice;
2. This case be, and it hereby is remanded to the defendant United States Environmental Protection Agency for further proceedings consistent with this Order and provisions and regulations, as applicable, of the Clean Water Act, 33 U.S.C. § 1251 et seq.;
3. Defendants’ counter-motion for summary judgment (Doc. 22) be, and the same hereby is, held in abeyance pending further proceedings; and
4. The parties shall submit status report(s) by May 15, 2018, or sooner in the event of any relevant action by the United States Environmental Protection Agency.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge
That would mean that much sooner, rather than later, the right of all persons dependent upon a clean, toxic-algae-free Lake Erie for access to safe drinking water could be accomplished and guaranteed. Case: 3:17-cv-01514-JGC Doc #: 29 Filed: 04/11/18 25 of 25. PageID #: 9021

WHERE ARE THE FUNDS TO CLEAN UP
GRAND LAKE ST. MARYS?
(SEE OH EPA'S ANNOUNCEMENT BELOW)

PUBLIC INTEREST CENTER, (614) 644-2160

CITIZEN CONTACT: Mary McCarron

Ohio EPA Sets Record Year with Nearly $1 Billion to Improve Water Quality in 2017$1.7 Billion Set for 2018Ohio EPA issued more than $936 million this year to finance projects that upgrade drinking water infrastructure and improve the quality of Ohio’s lakes, rivers and streams — more than ever before in the 28-year history of the state’s revolving loan programs. All Ohio EPA loans are provided to communities at below market rates, and this year resulted in a combined savings of more than $150 million for Ohio’s counties, cities and villages.
“It’s important for Ohioans to know that Ohio EPA is helping communities and business with compliance, technical and financial assistance,” Ohio EPA Director Craig W. Butler said. “We were able to make this nearly billion dollar investment in water quality improvements because these funds are carefully managed, and we are meeting frequently with county commissioners and mayors to understand their community needs and build positive working relationships between state and local governments.”
Notable for 2017:

Improvements to wastewater infrastructure (which affect the health of Ohio’s surface waters flowing into Lake Erie and the Ohio River) received $861 million this year;
$65 million was directed toward improving Ohio’s public water systems;
$10 million was issued for projects that restore wetlands and counter the loss of Ohio’s natural water resources;
$36 million was provided in principal-forgiveness financing at zero percent interest (meaning borrowers are not required to repay the loans);
$13 million was distributed across 51 counties for home sewage treatment system (septic) replacement and upgrades;
17 loans were issued for large projects of $10 million or greater including combined sewer overflow projects in Cuyahoga, Hamilton, Franklin, Lorain, Lucas, and Summit counties along with large wastewater treatment plant improvements in Miami and Henry counties; and
$258 million was awarded for projects to separate combined sewer overflows in the Lake Erie watershed.

A summary of the projects may be viewed on Ohio EPA’s Division of Environmental and Financial Assistance web page. For 2018, Ohio EPA has already approved a plan to finance more than $1.7 billion in projects for further improving the quality of the state’s surface water.

The Ohio Environmental Protection Agency was created in 1972 to consolidate efforts to protect and improve air quality, water quality and waste management in Ohio. Since then, air pollutants dropped by as much as 90 percent; large rivers meeting standards improved from 21 percent to 89 percent; and hundreds of polluting, open dumps were replaced with engineered landfills and an increased emphasis on waste reduction and recycling.

THIS IS IMPORTANT INFORMATION

Harmful Algal Blooms Implications for Tap/Drinking Water
and Recreational Waters

Recreational Public Health Advisories
Beachguard provides a current listing of public health advisories and water quality information for certain recreational waters which are monitored for E.coli and cyanobacteria also known as harmful algal blooms.
Ohio has developed a recreational response strategy to provide a unified statewide approach to address harmful algal blooms in recreational waters and to protect people from cyanotoxins produced by cyanobacteria. The strategy identifies numeric thresholds for cyanotoxins and advisory recommendations for recreating in the water. This video presentationdescribes the strategy actions and recommendations. More information on HABs can be found at www.ohioalgaeinfo.com.

Harmful Algal Blooms (HABs)
Cyanobacteria, often called blue-green algae, are commonly found in Ohio lakes, ponds, and slow-moving rivers. Although many species of blue-green algae do not produce toxins, some species of blue-green algae can cause Harmful Algal Blooms (HABs).HABs occur when there is a shallow body of fresh water, warm temperatures, sunlight, and excessive amounts of nutrients (phosphorus and nitrogen) in the water. Phosphorus and nitrogen are commonly found in animal and human wastes and in fertilizers.
Under the right conditions, the numbers of blue-green algae can dramatically increase or "bloom" in a body of water. Some of these HABs are visible as thick mats or scum on the surface of the water. These mats can vary in color, including bluish-green, bright green, or even red or maroon.

HABs Can Produce Harmful Toxins, Including MicrocystinS
HABs can produce toxic chemicals in the form of neurotoxins (which affect the nervous system), hepatotoxins (which affect the liver), and dermatoxins (which affect the skin).

Type of ToxinS
Anatoxin - a
Neurotoxin
Cylindrospermopsin
Hepatotoxin
Lyngbyatoxin Dermatoxin
Microcystin Hepatotoxin
Saxitoxin Neurotoxin

These toxins can potentially impact the health of people who come into contact with water contaminated with these toxins, depending upon the type and levels of toxins in the water, and the type of contact with the contaminated water.

Common Ways for Contact with HABs

The most common ways to come into contact with HABs are:

Drinking/Swallowing – Drinking HABs-contaminated water from a public water system during a drinking water advisory or the incidental/accidental swallowing of contaminated water such as during water-related recreational activities.
Skin Contact – Swimming, skiing, tubing and other recreational activities in HABs-contaminated waters.
Inhaling – Breathing aerosolized water droplets (misting) of HABs-contaminated water from recreational activities such as jet-skiing or power boating.

Other than through water droplets (misting) such as caused by recreational water activities, HABs toxins do not release into the air and pose a health risk.
Some of the blue-green algae produce odor-generating by-products that are not toxic but have a very unpleasant smell which can cause sensitive individuals to become nauseated (upset stomach, vomiting) and develop headaches.

Health Problems Exposure to HABs Can Cause in People & Pets

Drinking/Swallowing HABs-Contaminated Water
Skin Contact with HABs-Contaminated Water
Inhaling HABs-Contaminated Water

Drinking/Swallowing HABs-Contaminated Water

Severe diarrhea and vomiting
Liver toxicity (abnormal liver function, abdominal pain)
Kidney toxicity
Neurotoxicity (weakness, salivation, tingly fingers, numbness, dizziness)
Difficulty breathing
Death

Skin Contact with HABs-Contaminated Water

Rashes
Hives
Skin blisters (especially on the lips and under swimsuits)

Inhaling HABs-Contaminated Water

Runny eyes and nose
Sore throat
Asthma-like symptoms
Allergic reactions

Individuals should seek medical attention if they believe that they have been exposed to algal toxins and are having adverse health effects.
Contact a veterinarian immediately if pets show signs of illness.

Advisories for HABs-Contaminated Drinking Water
Ohio communities and/or public water systems issue two types of Drinking Water Advisories depending upon the level of HABs toxins in the finished drinking water:

A Do Not Drink Advisory for bottle-fed infants and children younger than school age, pregnant women, nursing mothers, individuals with pre-existing liver conditions, and individuals receiving dialysis treatment.
A Do Not Drink Advisory for all people of all ages as well as for pets and livestock.

Type of Advisory

Microcystin
Anatoxin-a
Cylindrospermopsin
Saxitoxin

Do Not Drink Advisory for:

Bottle-fed infants and children younger than school age
Pregnant women
Nursing mothers
Individuals with pre-existing liver conditions
Individuals receiving dialysis treatment

As a precautionary measure, the elderly and people with compromised immune systems may want to consider using an alternate water source as well.
0.3 μg/L 20 μg/L 0.7 μg/L 0.2 μg/L

Do Not Drink Advisory for:

All people of all ages
Pets
Livestock

1.6 μg/L20 μg/L 3 μg/L 0.2 μg/L Note that values are reported in μg/L (microgram per cubic liter), which is equal to one (1) part per billion (ppb).

During a drinking water advisory, an alternative water source, such as bottled water, should be used for:

Drinking
Making infant formula
Making ice
Preparing food
Brushing teeth

During a drinking water advisory, healthy individuals may continue to use the water for:

Washing hands
Bathing
Washing dishes
Doing laundry

Children five years old and younger should be supervised when bathing to prevent accidental ingestion.
Skin irritation, such as a rash may occur from exposure when washing hands and bathing.
Providing a final rinse of skin with uncontaminated water is recommended, especially for items that go into the mouths of infants and children under the age of six years (i.e., teething rings, nipples, bottles, toys, silverware).
Do not boil the water. Boiling the water will not remove the toxins.

Advisories for HABs-Contaminated Recreational Waters
The Ohio Department of Health issue two types of Recreational Water Advisories depending upon the level of HABs toxins in such waters:

A Recreational Public Health Advisory when toxin levels exceed the recommended threshold, and beach signs warn that an algal bloom is present and/or algal toxins have been detected. Swimming or wading is not recommended for children, pregnant or nursing women, those with certain medical conditions and pets.
An Elevated Recreational Public Health Advisory when toxin levels exceed the recommended threshold. Beach signs note that all contact with water should be avoided and algal toxins at unsafe levels have been detected.

Click here for a list of current public health advisories and water quality information for recreational waters.

Type of Advisory
Microcystin
Anatoxin-a
Cylindrospermopsin
Saxitoxin

Recreational Public Health Advisory
A sign is posted on beaches when toxin levels exceed the recommended threshold and warn that an algal bloom is present and/or algal toxins have been detected. Swimming or wading is not recommended for children, pregnant or nursing women, those with certain medical conditions and pets.

6 μg/L 80 μg/L 5 μg/L 0.8 μg/L
Elevated Recreational Public Health Advisory
A sign is posted on beaches when toxin levels exceed the recommended threshold warning that all contact with the water should be avoided and algal toxins at unsafe levels have been detected.
20 μg/L300 μg/L 20 μg/L 3 μg/L Note that values are reported in μg/L (microgram per cubic liter), which is equal to one (1) part per billion (ppb).

How to Treat People and Pets Exposed to HAB Toxins
If you come into contact with HAB-contaminated water, rinse off with clean, fresh water as soon as possible.
Thoroughly rinse of your pets with clean, fresh water.
Pets that have been in HAB-contaminated water may ingest toxins by drinking the water and/or licking their fur afterward.
Seek immediate medical attention if you think that you, your pet or your livestock might have been poisoned by HAB toxins.
Healthcare providers can visit the ODH Blue-Green Algae/Cyanobacteria Harmful Algal Bloom Physician Reference for more information.
Veterinarians can visit the ODH Harmful Algal Blooms Disease In Animals fact sheet for more information.

Eating Fish Caught in HABs-Contaminated Waters
The Ohio Department of Natural Resources Division of Wildlife works closely with the Ohio Environmental Protection Agency and ODH to monitor fish tissue.
Preliminary fish tissue monitoring and research indicates that fish caught in areas affected by HABs should be safe to eat as long as the Ohio Sport Fish Health and Consumption guidelines are followed. There is minimal evidence in scientific literature suggesting the accumulation of microcystin toxins in fish fillets with transmission to people who eat them. Fish appear to metabolize microcystin toxins relatively quickly, although evidence suggests that the toxins may concentrate in fish livers.
It is recommended that fish and fish fillets be rinsed with clean water before consumption as a precaution. DO NOT eat internal organs since microcystin toxins and other contaminants have the potential to concentrate in them.

How to Report a Suspected HABs Illness to ODH

Individuals who are concerned that they may be experiencing HABs illness symptoms after exposure to contaminated water should contact their healthcare provider. Healthcare providers who rule out other potential causes of the symptoms and suspect a HABs illness, should notify their local health district.
Local health districts should complete forms for reports of human illnesses associated with either recreational or public water supply exposure to HABs toxins, and then fax completed forms to the ODH Bureau of Environmental Health and Radiation Protection secure fax: 614-466-4556.

Pet and livestock owners who are concerned that their animal may be experiencing HABs illness symptoms after exposure to contaminated water should contact their veterinarian.
Veterinarians who rule out other potential causes of the symptoms and suspect a HABs illness, should complete an animal illness report form and fax it to the ODH Zoonotic Disease Program secure fax: 614-564-2437.

References and Additional Information

Please contact the Bureau of Environmental Health and Radiation Protection, Recreation Program at 614-644-7464 for questions or additional information.

Page Updated: 8/8/2017

Finally, the SWCD is acknowledging the misuse of federal funds in the GLSM watershed. How far does this abuse go?

Friday, April 7th, 2017

SWCD's resolution supported

By Nancy Allen

A state organization that protects soil and water resources has endorsed a local resolution to discourage misuse of federal funds and ag conservation structures, Mercer County Soil and Water Conservation District board members learned Thursday.

The state delegate body of Ohio Federation of Soil and Water Conservation Districts in February endorsed the resolution submitted by the Mercer SWCD. The resolution authorizes the USDA's Natural Resources Conservation Service to fine and collect refunds when producers use structures and buildings financed with Environmental Quality Incentives Program funds for anything unrelated to manure management.

The resolution states that a farmer must use the structure as intended for the life of the practice rather than the life of the contract. Contracts typically span 3-6 years while the lifespan of structures are typically 10-15 years, leaving significant time when NRCS has no authority over structures built with its funds, the resolution says.
If the resolution is approved, it could become part of federal NRCS guidelines, said Nikki Hawk, Mercer SWCD district administrator/education specialist. The process could take 18 months or more before the new regulation is in place, Hawk said.

The Mercer SWCD board in December first discussed submitting the resolution. At that meeting, Ryan Kemper, NRCS district conservationist for Mercer County, said he had received complaints about producers who had received federal funds to construct dry-stack manure storage buildings and then later used them to store farm equipment or house livestock. Mercer SWCD technician Matt Heckler said he had received similar complaints.

The resolution would cover any structure installed using EQIP funds, including feed lot covers and holding ponds. Locally officials have received the most complaints about misuse of dry-stack manure storage buildings, Heckler said.
EQIP funds help farmers pay to install practices designed to stem runoff from manure that can pollute water bodies.
The resolution says "if it is determined that an EQIP funded structure is being utilized for a purpose other than the original intent resulting in a resource concern, the producer will be required to pay liquidated damages and will not be eligible for a new EQIP contract to address the same resource concern for the lifespan of the existing structure."
"The concern is that people could use the buildings to store farm equipment or other uses it wasn't intended for and pile their manure outside," district technician Matt Heckler said. "That can cause a resource concern."
Heckler noted that the Farm Service Agency has a similar mechanism to issue fines for infractions.

"Ohio Department of Natural Resources Director James Zehringer says over time conditions have started to improve....The algae was really bad back in 2011 and 2010 and every year it’s gotten better,” Zehringer said. “We have a long way to go.”... Zehringer says it’s not the algae that’s the only problem."

- Statement made May 31, 2016 on WDTN

Guardians protested the "Permit to Operate" application by John Fleck & Sons. The application rolls various farm comments on the " Permit to Operate" permit by the John Fleck and Sons organization. permit to operate application due to the OH Dept. of Agriculture mishandling of the application. ODA has allowed a bundling of several farms under one PTO application. The Ohio law states that this is allowed only if the properties are adjoining which they don't. The current application is illegal according to Ohio code and endorsed by the ODA.

June 20, 2016

Kate Anderson, President
Guardians of Grand Lake St. Marys
247 E. Sycamore St.
Columbus, OH 43206

Ohio Department of Agriculture
Division of Livestock Environmental Permitting (DLEP)
8995 East Main St.
Reynoldsburg, OH 43068

To Whom It May Concern:

The Guardians of Grand Lake St. Marys (GOGLSM) is strongly opposed to the draft Permit to Install (PTI) and the draft Permit to Operate (PTO) that has been issued to Pine Valley Ranch, LLC, 8704 St. Rt. 274, New Bremen, OH, Auglaize County, Jennings Township in the Auglaize and St. Marys Watershed.

GOGLSM recommends that there be a moratorium on any additional livestock coming into in polluted watersheds from farm run-off by family farms, AFOs, CAFOs or MCAFFs until the pollution problem is permanently resolved in Grand Lake St. Marys (GLSM), Lake Erie and other Ohio bodies of water.

We also ask that all farms with livestock be permitted regardless of size. The size of a farm should not matter when it comes to permitting. We believe this is important since many of Ohio’s waterways are polluted by such..

GOGLSM is opposed to the permits for Pine Valley Ranch, LLC based for the following concerns.

Health

Attached is a copy of a letter by John Hopkins University, Bloomberg School of Public Health regarding the public health concerns with a facility of 1.7 million-layer capacity poultry operation. The health concerns stated in the letter, include the following:

“1. Infections resulting from the potential transmission of pathogens (disease-causing organisms, including bacteria that can infect people) from poultry operations to nearby residents, for example, via flies or contaminated air or water;

2. Health effects, including asthma, bronchitis and allergic reactions with exposure to air pollution from poultry operations; and

3. Health effects (e.g. thyroid problems, methemoglobinemia, neurological impairments (see attached 2011 lawsuit Cooper Farms facility causing permanent brain damage), liver damage) associated with exposures to nitrates, drug residues and other hazards that may be present in ground/or surface waters contaminated by manure from poultry operations.”

GOGLSM Recommendations

There should be a fly trapping program to establish a baseline for the average number of flies present prior to the start-up of the MCAFF to establish if a fly nuisance problem exists in the area prior and after the construction and management of the MCAFF. Neighboring properties within a ten-mile radius should be thoroughly compensated for any nuisance created by flies.

Decline in Real Property Values
The potential for real property valuation loss is possible. A recent study by John A. Kilpatrick, "Concentrated Animal Feeding Operations and Proximate Property Values", The Appraisal Journal, July, 2001, p. 306. Describes the impacts of the nearby real estate stemming from the development of enterprises such as the proposed MCAFF PTI and PTO by Pine Valley Ranch, LLC.
Below is the summary of their findings.
Demonstrated Economic Losses—The Evidence

The magnitude of the economic loss suffered by the neighbors of a CAFO can be significant. The costs shifted to the residents of the region by a CAFO adversely affect the value of neighboring properties. This, in turn, lowers the taxable value of these properties and shifts costs to all other residents of the region. Palmquist et al., in a 1995 study in North Carolina, found that neighboring property values were affected by large hog operations based on two factors: the existing hog density in the area and the distance from the facility. The maximum predicted decrease in real estate value of 7.1 percent occurred for houses within one-half mile of a new facility in a low hog farm density area. 1997 and 1998 updates of this study found that home values decreased by $.43 for every additional hog in a five-mile radius of the house. For example, there was a decrease of 4.75% (about $3000) of the value of residential property within
1/2 mile of a 2,400 head finishing operation where the mean housing price was $60,800.8

A 1996 study by Padgett and Johnson found much larger decreases in home value than those forecast by Palmquist. In Iowa, hog CAFOs decreased the value of homes in a half-mileradius of the facilities by 40%, within 1 mile by 30%, 1.5 miles by 20% and 2 miles by 10%.
In addition, an Iowa study found that while some agricultural land values increased due to an increased demand for “spreadable acreage,” total assessed property value, including residential, fell in proximity to hog operations.

An eighteen months study of 75 rural land transactions near Premium Standard's hog operations in Putnam County, Missouri conducted by the departments of Agricultural Economics and Rural Sociology at the University of Missouri found an average $58 per acre loss of value within 3.2 kilometers (1.5 miles) of the facilities. This study primarily evaluated farmland without dwellings. These findings were confirmed by a second study at the University of
Missouri-Columbia by Hamed, Johnson, and Miller that found that proximity to a hog CAFO does have an impact on property values. Based on the averages of collected data, loss of land values within 3 miles of a hog CAFO would be approximately $2.68 million (US) and the average loss of land value within the 3-mile area was approximately $112 (US) per acre.1

Real estate appraisers have also noted the problems associated with property values and large hog operations. In an article in the July, 2001 Appraisal Journal, John Kilpatrick found that "[w]hile the appraisal profession has only begun to quantify the loss attributable to CAFOs,….diminished marketability, loss of use and enjoyment, and loss of exclusivity can result in a diminishment ranging from 50% to nearly 90% of otherwise unimpaired value."

Tax Impacts of Reduced Property Values
A compilation by the Sierra Club of tax adjustments by county assessors in eight states documented lower property taxes for neighbors of facilities like those run by Premium Standard Farms. Local property tax assessments were lowered in Alabama, Illinois, Iowa, Kentucky, Maryland, Michigan, Minnesota and Missouri by ten the thirty percent due to their close proximity to the corporate hog CAFOs.

Diminishment effects continue to be considered when tax valuations are determined around large CAFOs. On September 14, 2001, the Clark County, Illinois Supervisor of Assessments announced the county has established an assessment abatement for the fifty residential homes around the Welsh Farm (a hog CAFO) in northeast Clark County. For those homes within a half-mile of the hog production facility, there is a 30 percent reduction in the property assessment; 25 percent reduction within three-quarters of a mile; 20 percent within one mile; 15 percent within one and one-quarter miles; and 10 percent for one and one-half miles.

GOGLSM Recommendations

1. Due to the potential loss of real property value near the Pine Valley Ranch, LLC laying facility, GOGLSM recommends that the owners and operators in this draft permit application be required to pay for an independent real property assessment within a ten-mile radius of the proposed facility to establish current real property values as a benchmark.

2. We also recommend that another independent real property assessment be conducted every year for the five years of these permits with any loss in real property values in the ten-mile radius be paid to the real property owners for their loss by owners of the Pine Valley Ranch, LLC.

Concerns with the Misleading and False Information in the PTO and PTI Permit Application

There are many issues GOGLSM has with the Pine Valley Ranch, LLC PTO and PTI Permit Application and based on the errors and the incompleteness of the permit application and according to Ohio Revised Code 901:10-1-03 – “Criteria for decision-making” by the Director

901:10-1-03 – (A)(1) -) The permit application contains misleading or false information.

Items of Misleading and False Information in the Permit Applications

901:10-1-03 – (B) - The director may deny, modify, suspend or revoke a permit to install or permit to operate if the applicant, owner, operator or persons associated in the operation of concentrated animal feeding facilities, have a history of substantial noncompliance with the Federal Water Pollution Control Act, the Safe Drinking Water Act, as defined in section 6109.01 of the Revised Code, any other applicable state laws pertaining to environmental protection or environmental laws of another country that indicates that the applicant or owner or operator lacks sufficient reliability, expertise and competence to operate the facility in substantial compliance with Chapter 903. of the Revised Code and this chapter.

Pine Valley Ranch, LLC has Brian J. Winner identified as the Certified Livestock Manager

(CLM #23) for this permit, however, his certification expired on May 14, 2016.

901:10-1-03 - ((B)(1)(b) If the applicant or permittee is a sole proprietor or any other business concern, provide the full name, date of birth, and business address of each individual or business concern holding more than fifty per cent of the equity in the applicant or permittee;

All businesses have not been listed for the people listed in the PTI, PTO. For example Chris Rindler has registered in Indiana at 2104 E. 300 South, Portland, Indiana 47371. Cooper Farms also has this address listed as one of their “Commercial Table Egg Layer Flocks. Several facilities have not been listed for Brian Winner and Ralph Rindler.

Green Valley Ranch Notice of intent

Saturday, May 30, 2015 1:47 PM
Public Notice
Notice of Intent
Public Notice - Green Valley Ranch LLC, being the developers of Layer Houses and Egg Processing Building, located in the Southeast and Southwest Quarters, Section 35, Township 23 North, Range 14 East, Jay County, Indiana is submitting Notice of Intent to the Indiana Department of Environmental Management Office of Water Quality for our intent to comply with the requirements of 327 IAC 15-5 (Rule 5) to discharge storm water from Construction Activities associated with the new development. The project will discharge water into the Salamonie River.

Questions or comments regarding this project should be directed to:
Chris Rindler, Owner
2104 E. 300 South
Portland, IN 47371
Chris Rindler - Businesses
Businesses in Ohio:
h\p://www5.sos.state.oh.us/ords/f?p=100:2:0::NO:RP::
Business Name: RW FAMILY FARMS, LLC DOMESTIC LIMITED LIABILITY COMPANY
10/06/2014 Active - - -

2366909 Agent/Registrant/Incorporator Name
CHRIS RINDLER
Business Name: R VALLEY FARMS LLC DOMESTIC LIMITED LIABILITY COMPANY
02/12/2015 Active - - -

2366934 Agent/Registrant/Incorporator Name
CHRIS RINDLER
Business Name: RB FAMILY FARMS LLC DOMESTIC LIMITED LIABILITY COMPANY
02/12/2015 Active - - -

2366969 Agent/Registrant/Incorporator Name
CHRIS RINDLER
Business Name: RW PULLETS LLC DOMESTIC LIMITED LIABILITY COMPANY
02/12/2015 Active

            Other Businesses Registered By Brian J. Winner
https://www.statelog.com/brian-winner-farms-llc-new-weston-oh

PINELAND LLC, NEW WESTON, OH
FOXTAIL RANCH LLC, NEW WESTON, OH
WINNER EGG LLC, NEW WESTON, OH
J STAR FARMS LLC, NEW WESTON, OH
RACE VIEW FARMS LLC, NEW WESTON, OH

http://www.bizapedia.com/addresses/6183-ST-RT-705-NEW-WESTONOH-
45348.html

Prairie Star Farms LLC
Brian Winner Farms LLC
Winner Livestock Farms LLC
5 W Farms, LLC

Ralph Rindler Businesses

RALPH RINDLER Business Name
http://www5.sos.state.oh.us/ords/f?p=100:2:0::NO:RP::

RINDLER FARMS, LLC DOMESTIC LIMITED LIABILITY COMPANY 11/24/2010 Active
1421757 Agent/Registrant/Incorporator Name

RALPH RINDLER Business Name
RINDLER FAMILY REAL ESTATE, LLC DOMESTIC LIMITED LIABILITY COMPANY 11/06/2003 Active
1421916 Agent/Registrant/Incorporator Name

RALPH RINDLER Business Name
RINDLER POULTRY, LLC DOMESTIC LIMITED LIABILITY COMPANY 11/06/2003 Active
1447870 Agent/Registrant/Incorporator Name

RALPH RINDLER Business Name
RINDLER GROUP LLC DOMESTIC LIMITED LIABILITY COMPANY 03/10/2004 Active
2155733 Agent/Registrant/Incorporator Name

RALPH RINDLER Business Name
INDIAN TRAIL PULLETS, LLC DOMESTIC LIMITED LIABILITY COMPANY 12/03/2012 Active
2307007 Agent/Registrant/Incorporator Name

RALPH RINDLER Business Name
RINDLER FARMS INDIANA, LLC DOMESTIC LIMITED LIABILITY COMPANY 06/27/2014 Active

HIllandale Farms Violations and Lawsuits (by Association with current permit applicants)

Hillandale Farms, Inc. has an agent John Hicks 5424 Watkins Road address same as RB Family Farms, LLC, Rindler Poultry. Below websites show Hillandale is a subsidiary to Cal Maine Foods who has violations listed below. (by Association)

Hillandale Farms of PA subsidiary of Cal Maine Foods
http://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=4489960

Hillandale Farms, Inc.
http://www.ohiocorporates.com/corp/909951.html

http://www.manta.com/c/mtw4rk1/hillandale-farms-inc
at the 5424 Watkins Road St. Henry, OH (Rindler Poultry, RB Family Farms, LLC address on PTI PTO)

PILAR M. DE CASTRO & CO., INC. et al v. CAL-MAINE FOODS, INC. et al
Filed: January 8, 2009 as 2:2009cv00101
Plaintiff: PILAR M. DE CASTRO & CO., INC., DONN CAMLIN, PATRICIA TARRANCE and others
Defendant: CAL-MAINE FOODS, INC., DAYBREAK FOODS, INC., HILLANDALE FARMS OF PA, INC. and others
Cause Of Action: Federal Question
Court: Third Circuit › Pennsylvania › Pennsylvania Eastern District Court
Type: Other Statutes › Plaintiff

COUNTRY FOODS v. HILLANDALE FARMS OF PA, INC. et al
Filed: October 23, 2008 as 2:2008cv05078
Plaintiff: COUNTRY FOODS
Defendant: HILLANDALE FARMS OF PA, INC., CAL-MAINE FOODS, INC., DAYBREAK FOODS, INC. and others
Cause Of Action: Federal Question
Court: Third Circuit › Pennsylvania › Pennsylvania Eastern District Court
Type: Other Statutes › Plaintiff

Cooper Farms Violations and Lawsuits (by Association with current permit applicants)

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., ET AL. V COOPER, ET AL.
Plaintiff:
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., ANIMAL LEGAL DEFENSE FUND, CENTER FOR FOOD SAFETY, FOOD & WATER WATCH, FARM SANCTUARY and GOVERNMENT ACCOUNTABILITY PROJECT

Defendant:
ROY COOPER and CAROL L. FOLT

Case Number:
1:2016cv00025

Filed:
January 13, 2016

Court:
North Carolina Middle District Court

Office:
NCMD Office

County:
Alamance

Referring Judge:
JOI ELIZABETH PEAKE

Presiding Judge:
THOMAS D. SCHROEDER

Nature of Suit:
Constitutionality of State Statutes

Cause of Action:
42:1983

Jury Demanded By:
None


Cal-Maine Foods, Inc. Violations and Lawsuits (by Association with current permit applicants)

http://violationtracker.goodjobsfirst.org/parent/cal-maine-foods

            Grubbs v. Cal-Maine Foods, Inc.
Filed: March 31, 2016 as 5:2016cv00255
Plaintiff: Jonia L. Grubbs
Defendant: Cal-Maine Foods, Inc.
Cause Of Action: Diversity-Employment Discrimination
Court: Eleventh Circuit › Florida › Florida Middle District Court
Type: Labor › Other Labor Litigation

United States of America et al v. Cal-Maine Foods, Inc.
Filed: April 13, 2015 as 3:2015cv00278
Plaintiff: United States of America , STATE OF MISSISSIPPI
Defendant: Cal-Maine Foods, Inc.
Cause Of Action: Clean Water Act
Court: Fifth Circuit › Mississippi › Mississippi Southern District Court
Type: Other Statutes › Environmental Matters

            Popoca v. Cal-Maine Foods, Inc. et al
Filed: November 12, 2014 as 8:2014cv02824
Defendant: Cal-Maine Foods, Inc. , One Balance, Inc.
Plaintiff: Noe Popoca
Cause Of Action: Job Discrimination (Race)
Court: Eleventh Circuit › Florida › Florida Middle District Court
Type: Labor › Other Labor Litigation

Valle v. Wharton County Foods, LLC et al
Filed: September 4, 2014 as 4:2014cv02556
Defendant: Cal-Maine Foods, Inc, Wharton County Foods, LLC
Plaintiff: Marlon Valle
Cause Of Action: (a) Fair Labor Standards Act
Court: Fifth Circuit › Texas › Texas Southern District Court
Type: Labor › Fair Labor Standards Act

Popoca v. Cal-Maine Foods, Inc. et al
Filed: February 18, 2014 as 8:2014cv00412
Defendant: Professional Management Services Group, Inc., One Balance, Inc. , Adolphus Baker and others
Plaintiff: Noe Popoca
Cause Of Action: Denial of Overtime Compensation
Court: Eleventh Circuit › Florida › Florida Middle District Court
Type: Labor › Fair Labor Standards Act

Warner v. Cal-Maine Foods, Inc.
Filed: September 21, 2013 as 2:2013cv14378
Plaintiff: Rahmin Warner
Defendant: Cal-Maine Foods, Inc.
Cause Of Action: Fair Labor Standards Act
Court: Eleventh Circuit › Florida › Florida Southern District Court
Type: Labor › Fair Labor Standards Act

Marquez v. Cal-Maine Foods, Inc.
Filed: May 21, 2013 as 8:2013cv01354
Defendant: Cal-Maine Foods, Inc.
Plaintiff: Alma Marquez
Cause Of Action: Fed. Question: Fair Labor Standards
Court: Eleventh Circuit › Florida › Florida Middle District Court
Type: Labor › Labor: Fair Standards

Equal Employment Opportunity Commision v. Cal-Maine Foods, Inc.
Filed: May 2, 2013 as 5:2013cv00382
Plaintiff: Equal Employment Opportunity Commision
Defendant: Cal-Maine Foods, Inc.
Cause Of Action: Employment Discrimination
Court: Fifth Circuit › Texas › Texas Western District Court
Type: Civil Rights › Civil Rights: Jobs

KRAFT FOODS GLOBAL, INC. et al v. UNITED EGG PRODUCERS, INC. et al
Filed: January 9, 2012 as 2:2012cv00088
Plaintiff: KRAFT FOODS GLOBAL, INC. , THE KELLOGG COMPANY , GENERAL MILLS, INC. and others
Defendant: UNITED EGG PRODUCERS, INC. , UNITED STATES EGG MARKETERS, INC. , CAL-MAINE FOODS, INC. and others
Cause Of Action: Clayton Act
Court: Third Circuit › Pennsylvania › Pennsylvania Eastern District Court
Type: Other Statutes › Antitrust

The preparer of this permit application has greatly underestimated water use calculations.

The estimate water use in the application is approximately 91,000 gals./day for 33,215,000 gals./yr. which is 24,316,300 gals./yr. or a required daily requirement of 157,619 gals./day There is no mention of any application for a “Withdrawal and Consumptive Permit.”

Ohio Revised Code Section 1521.16 requires that any owner of a facility, or combination of facilities, with the capacity to withdraw more than 100,000 gallons of water daily, register such facilities with the Ohio Department of Natural Resources, Division of Soil and Water Resources. 100,000 Gallons Per Day (GPD) = 0.1 Million Gallons Per Day (MGD) = 4200 Gallons Per Hour (GPH) = 70 Gallons Per Minute (GPM) is required to obtain a “Withdrawal and Consumptive Use Permit” by Ohio Dept. of Natural Resources.

90% production
2,220,000 chicks /1000 = 2,200 hens
2,200 x 71gals = 157,620 gals/day
157,620 gals x 365 days = 57,531,300 gals/yr. livestock consumption

Poultry Science Assoc., 2005 report, states average water use in an egg washing facility uses 2,100/day

2,100 gals X 365 days = 766,500 gals/yr. egg washing facility

Total daily water usage
57,531,3000+766,500 = 58,297,800gals./yr. or 159,720 gals./day not 91,000 which would not require a permit.

901:10-1-03 – (A)(3) - (3) The plans for the manure management plan, the insect and rodent control plan and any other plans governing the operation fails to conform to best management practices and to rules of this chapter.

5. Annual manure produced from the layer operation.

   =Manure/year x No. of layers x portion of year building is occupied
   =32 lb manure/layer x 60,000 layers x 50 weeks in production/52 weeks in a year x 1 ton/
      2,000 lb
   =(32 x 60,000 x 50/52)/2000
   =923 ton manure/year
   =923/12 = 77 ton/month
   =923/365 = 2.53 ton/day

(SOURCE: Purdue University Cooperative Extension Service and Indiana Soil Conservation Service)

90% PRODUCTION
32 lbs./yr X 2,220,000 X 52weeks = 71,040,000 actual tons/yr.

Per Application
Manure Trucks – 15/week @ 80,000 lbs.= 15trucks/week X 52 weeks X 80,000 = 62,400,000lbs/yr = 31,200 tons/yr.

Diff in Actual tonnage vs. Application calculated tonnage
71,040,000/yr. – 31,200tons/yr.= diff of 71,008,800 tons/yr.

6. The draft permit calls for composting dead animals in the manure lagoons which are designed to store manure for 353 days for manure storage and 615 days for liquid manure. This is an improper number of days for storing dead animals that can only be stored for 10 days according to the Ohio EPA regulations and then moved to a secondary composting facility.

7. There is no septic plan for human waste. What are the laws or regulations on combining human and animal waste be combined, drag-lined or irrigated?

901:10-1-03(A)(5) - The facility is not designed or constructed as a non-discharge system or operated to prevent the discharge of pollutants to waters of the state or to otherwise protect water quality;

Page 89. States the proposed facility is in the boundaries of a Sole Source Aquifer designated by USEPA that may be a violation of 901:10-2-02.

Page 106 states that the lagoon will be 20 feet deep, page 108 states it should be dug 10 feet beyond or 5 feet wider. Maps do not include the 10 feet beyond or 5 feet wider.

Well logs show that the lagoon will be built in the static water level of nearby well 217627 that is 11 feet. There is also a well at 25 feet static water level, well number 2007381.

Page 148 does not state where the pump station will be pumping to?

Page 176 shows 18,333 tons. This appears to be false due to the amount is underestimated and should be closer to 33,000 tons.

Will human waste be put in the egg wash water lagoon? How many employees?

The permit requires a “Construction Storm Water NPDES Permit” as required under (Rules 901-10-2-04 [E] and 901:10-3-11) because more than one acre will be disturbed.

There is no plan for air quality monitoring should be conducted monthly by an independent party with owners of Pine Valley Ranch, LLC being assessed fines to the fullest extent for any violations under federal and state laws.

With water usage estimated at 157,720 gallons per day there is no guarantee that water usage will NOT interfere with other farm operations in the watershed. A hydrology report should be included and a financial reimbursement plan for any neighbor or neighboring farms in the watershed.

Can ODA explain why the soil boring page facility map on the WDC Eggs, LLC page 41 of their PTI, PTO is the map for the Pine Valley Ranch, LLC on page 101 of their PTI, PTO?

Attached are maps from USDA that show this location as VERY LIMITED for Irrigation, Lagoons, Manure, and Wastewater by Rapid Infiltration. ("Very limited" indicates that the soil has one or more features that are unfavorable for the specified use. The limitations generally cannot be overcome without major soil reclamation, special design, or expensive installation procedures. Poor performance and high maintenance can be expected.)

GOGLSM Recommends the Following Action

Due to the numerous misleading and false in this application there is just cause to DENY this permit application for PTO and PTI by Pine Valley Ranch, LLC.

GOGLSM would like to receive the Department of Agriculture’s ruling and the public hearing transcript on this Livestock Permit for Pine Valley Ranch, LLC. We would also like to know the specific process the ODA uses to research for violations, lawsuits and the full extent of corporation ownership and by proposed CAFOs. The attached violations are primarily Ohio EPA and the Department of Agriculture.

Respectfully submitted,

Kate Anderson, President
Guardians of Grand Lake St. Marys

WDC EGGS, LLC ANNOUNCES - THEY WILL NOT LOCATE THEIR MEGA-CHICKEN LAYING FACILITY IN THE GRAND LAKE ST. MARYS WATERSHED!!!

COMPLETE IMPORTANT SURVEY BELOW!

View Video

BREAKING NEWS!

GOVERNOR KASICH FIRES OH DEPT. OF AGRICULTURE DAVID DANIELS!

GOGLSM RESPONDS to the Firing of
OH Dept. of Agriculture, David Daniels

Who will influence the
future of GLSM in the future?
Do your research and vote!!

voting is our most powerful tool. Ask all candidates about their positions on the declining state of Ohio's waterways.

Grand Lake St. Marys is now the 3rd most polluted
lake in the U.S. and the Kasich Administration continues
to refuse to implement the
TMDL recommendations.
Source: US EPA

GLSM 's Microcystins levels continue to be off the charts.

How does Grand Lake St.Marys compare to other Ohio polluted bodies of water?

WHERE ARE THE FUNDS TO CLEAN UP
GRAND LAKE ST. MARYS?
(SEE OH EPA'S ANNOUNCEMENT BELOW)

WDC EGGS, LLC ANNOUNCES - THEY WILL NOT LOCATE THEIR MEGA-CHICKEN LAYING FACILITY IN THE GRAND LAKE ST. MARYS WATERSHED!!!

COMPLETE IMPORTANT SURVEY BELOW!

Please complete the survey below.

Would you support legislation for a moratorium on factory farms

Contact us for more information.

Grand Lake St. Marys, Ohio

BREAKING NEWS!GOVERNOR KASICH FIRES OH DEPT. OF AGRICULTURE DAVID DANIELS!

GOGLSM RESPONDS to the Firing of OH Dept. of Agriculture, David Daniels

Who will influence thefuture of GLSM in the future? Do your research and vote!!

voting is our most powerful tool. Ask all candidates about their positions on the declining state of Ohio's waterways.

Grand Lake St. Marys is now the 3rd most pollutedlake in the U.S. and the Kasich Administration continuesto refuse to implement theTMDL recommendations.Source: US EPA

GLSM 's Microcystins levels continue to be off the charts.

How does Grand Lake St.Marys compare to other Ohio polluted bodies of water?

WHERE ARE THE FUNDS TO CLEAN UPGRAND LAKE ST. MARYS?(SEE OH EPA'S ANNOUNCEMENT BELOW)

WDC EGGS, LLC ANNOUNCES - THEY WILL NOT LOCATE THEIR MEGA-CHICKEN LAYING FACILITY IN THE GRAND LAKE ST. MARYS WATERSHED!!!

COMPLETE IMPORTANT SURVEY BELOW!

Please complete the survey below.

Would you support legislation for a moratorium on factory farms

Contact us for more information.

Grand Lake St. Marys, Ohio

BREAKING NEWS!

GOVERNOR KASICH FIRES OH DEPT. OF AGRICULTURE DAVID DANIELS!

GOGLSM RESPONDS to the Firing of
OH Dept. of Agriculture, David Daniels

Who will influence the
future of GLSM in the future?
Do your research and vote!!

Grand Lake St. Marys is now the 3rd most polluted
lake in the U.S. and the Kasich Administration continues
to refuse to implement the
TMDL recommendations.
Source: US EPA

WHERE ARE THE FUNDS TO CLEAN UP
GRAND LAKE ST. MARYS?
(SEE OH EPA'S ANNOUNCEMENT BELOW)