ml - supreme court of ohioamerica, et, al.. versus the northeast ohio regional sewer district, 1: 1...
TRANSCRIPT
MLBEFORE THE OHIO SLTNREME COURT
CASE NO, 2013-1770
CHIEF JUSTICE MAUREEN O'CONNOR
Appeal from the Eighth District Court of AppealsCase No. CA-12-098728
(Consolidated with Case Nos. CA-12-098729 and CA-12-098739)
Cuyahoga County Court of Common PleasCase No. CV-10-7I4945
Northeast Ohio Regional Sewer District ) Brief of Amicus Curiae, Eugene P. Holmes
) And Penny L. Sisson in Support of theV. ) Appellee, Bath Township, et. a.l.
Bath Township Ohio, et. al. ))
Rosalina M. Fini (0063625)
CLEVELAND METROPOLITANPARK DISTRICT4101 Fulton ParkwayCleveland, Ohio 44141Telephone: 216-635-3216Fax: 216-635-3232
Attorney for Amicus CuriaeCleveland Metropolitan Park District
INTRODUCTION: :
Page 1 of 14
J U IN 2 w ? Ll 14
CLERK OF COURTREME COURT nF r
Michael L. Hardy (0011717)Karen E. Rubin (003 03 3 9)Devin A. Barry (0080733)
THOMPSON HINE, LLP
3900 Key Center, 127 Public SquareCleveland, Ohio 44114Telephone:. 216-566-5500Fax: 216-566-5800
Mike.Hardy@ThompsonHine, [email protected]@ThompsonHine.com
Attorneys for Aniicus CuriaeCleveland Metropolitan Park District
.< <. _ i .. ,. . _
0
TABLE OF CONTENTS
TABLE OF AUTHORITIES .........:............... ..................................... .............1i
INTRODUCTION . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P.. ........... ................ 3.....
STATEMENT OF FACTS AND ARGUXIENT IN SUPPORT OF THE8TH DISTRICT COURT OF APPEAL'S RULING AND REQUESTFOR DE NOVO FACTSIREVTEW ...... . .............. ............................................. 5
1 . Lack of Jurisdiction ........... .. . .. . .... . . . . .. ...... :. ................................ ^
2. Res Judicata.......................... ........................................ 5
3. Taking Statute Pursuant to the Fifth Amendment. . .. . . . .. .. . .. .. . . ... .. . . . . . . . .. . . . . . .. . . 6
4. Failure to Request Permit andlor Full funding.................... ..... 8
CONCLUSION .. . . . . . . . . . . . .. .... .. .. . . . . . . . . .. ^..... ........................ ....... -1
_i_
TABLE OF AUTHORITIES
Page(s)
United States of America, et. Al v. Northeast Ohio Regional Sewer District,1 10-cv-02895-DCN 5
Federal Water Pollution Control Act, 33 U.S. C., 1251 et. Seq. 6
8th District Court of Appeals, Northeast Ohio Regional Sewer District v.Bath Township, CA 12 098728 6
Water Quality Act of 1987 6, 7
Title 1, Section 105 (a) 6, 7
Title 1, Section 108
Clean Water Act of 1972, Sections 301, 502
Title IV of the Clean Water Act
7, 8
9
9
President's Fiscal 2013/2014 budget (public record) 9
Kelo v. City of New London, Connecticut, 545 U. S. (2005) 10, 11
Terry Wilkins v. Ohio Department of Agriculture (2014 2:12-cv-01010 11
Lorain County Court of Common Pleas, Case No. 07 CV152082 11
Chicago B&QR v. Chicago, 166 US 226 (1987) 13
-ii-
John B_ ^alb^dianW. Stuart DomeftTAFT TTI' S & p 01.1z Sy'T:g; R LLp425 ^^^^ Street, Sui , v f E. 0^^^^ei-nnati, OR 45202
Stephen M. a'pryanUregoryi- OFBlienNfich.ael J. ZbiegieLt, .^r_TAFT STETTMUS &200 Public Squere, ^^^^ 3-50-0Cleveland, Ohio 44114
.At1o.a-neys_fe^^^^e11,eF--- City ofB^^hvjood, Ci{;' c-fBedford .^^^hts, 0^^ of C1eve .^',^^&-,of GlenmZ1ow; Cay o, f '1ndep+endence, City ofLyndhurst, PrilI€zge of Oakwood, City o.g 0Z^^tedFalls, and City ofStrongswlle
Sheldon BernsBe-ni . m° n 1 OcknerJordan Bems(-'Tary F. ^'DincrTimothy L Duff^^ ^^ ^^ ^ ^^ -R & LLC^^^3^ _
Easts ^^.^ ^^ ^.^rive, & ; rcBea-chw^^ ^^^^ ^ ^ 122T^IePhone 21 C- 9-3 i --8 8 38Fax 2I6^64-44,10
Att.orneysfoa° AppelleeT Northeast ',5;^^^^^^^^^ ^^^jwoR, et a.?
Barbara A. Lanvi^^ryziDirector of Law^^^ ^F CLE - ELA :601 Lakeside Avenue, Rwm 1%CIeveIand, Ohio 44-114Telephone 216-664-:2W<Fax 216-664-2663
Attof°ne.vsfor Amicus C€^^^^ the Cl-^ of Clemla. .
^^^t-inued on next pa^^^
E&-abeth ^^^^ RothenbergA:s^^.^^ Director ofLaw
CITY ^^ ^^ W-,TaA=fVD ^^GH: . S,jeC-r,
.a-*¢-@ <'.•.i^^ .cs:s.s<it-: ^if- r3 ^^^ ^^'^ -^ 'ES_,* 3'6€6^
1216- ; !Fax 216-291-3`73 1
=-77eyfo^^^^^^^^^ CLty ofH^^^^
Da-vid 1. MattyShana S_^^ Ls riJ . .' n WhelanMATTY, ^ ^ KSON &GREVE, LLC`55 Publa^ Square, Suite 1775^. ^1 -0hio 44113
. 'x;s^^^l6-62j-6-57fl621-1127
City O, fBrecfsvzlle
^^^ LuckageALBERS AND ALBERS88 N. Fifth Street^^lumbusg Ohio 43215Telephone 614-464-4414^^ 614--461-.0604
.^MOMeYfOr - : 'd Cw-aae Coalihon of^^^ Regiona Districts, Deerfield Re-^^I Storm W-ater Dista-act and ABCWaM7 and S^om Water Dkstrlct
-k^THACET, ¢ ti. ^.R^^a sy ^ LpA2330 One ^^c a-' C <, tcr1375 E_ 9th StreetCleveland, Ohio 44114Telephone 2 16--456-^^8Fax 216-456-3850
James R LangMatthew I .^uchamnMOHY A. DrakeCALFEE, . TER & GR.^ S-WO; D LLP1405 East Sixffi StreetCleve1and, Ohio 441 314Telephone 21 6-622-S20+EFax 216-241--0816
Marlene ^^^imeyDirector of Law
^ORT.HE^^ O-W^ JzE^.^oN.SEWER^^ RICT3 900 Euclid Av^^ue,Cleveia'4 Ohio 44115Telephone 216-881-6600
Attorneys^`^r^ppe^^lant N^^^^^ Ohio,Regional S . er Disrr&-t
Yvette McGee Brown^^NESDA`^.'325 John H_ McCoj>R,::J f3,r^^1kyapd,P.O. Box 165017COlumbus, Ohio 43216-:5017Telephone 614-469-3919Fax 614461-4198
Attorney on t^^WfqfAm^^ Curiae d7j,^L2ge ^^Cuya-hoga Heights, e^ aL
(continued on next page-)
_3..
_ra I IA_ ^^^bene'^ 'r < ^ API^"^N UE:... : ^ ^S LL.I'
^oad, Suite 216Acc Ohio 43-15F;P 61478-^^^^
^X 614-485-^1-09
Gregory J. DeGulis:^CM ... .^^ ^^^^IS LLP^^ Caxton Building, Suite 650912 ^^n Road^level Ohio 44115-1168T€eph€ane 216-367-1403Eax 216-621--0577
Erica M. Spitzig
I^^^ ^^^ DEGULIS LLPThe Monastery1055 St. Paul PlaceCincirmati, Ohio 45202^^^^^^ 513-898-1542Fax 216-621-0577
AdoraM.^or A'DU-CW Curiae National^^och€^n of Clean Water Agencies andA-wo^igfion of Ohio MetropolitanWastewater Ageazetes
Eugene P. ^^^ies, Pro Se233 5 07 .^^^^^^ Road
^^^^ Ohio 44028Telqs^ne, 440-236-8486
Amuws Curme m SuPPor^ OfAppellee
^enny S3ssCi;
.^x 266spenccx,
Amicus c'^^ .^^^ L^^^relk?
L ^^^^ I S -
Cannon Road1 i3' s^ Ohio 44139
---T'T-^h€anc 40-248-0548
n4nae in S : rt o;^Appellee
-4-
I`.Tow appears injured and disabled citizen(s), Eugene P. Holmes, and Penny Sisson and files this
brief Amicus Curiae in support of the Amicus Curiae's position and further states de novo review
of critical jurisdictional issues not addressed by either party pursuant to Supreme Court Rules
16.06 (A), (B)(3).
STATEMENTS OF FACTS AND ARGUMENT:
Both Amicus Curiaes state strongly that the arguments placed before the honorable Supreme
Court of Ohio basically argue over jurisdictional authority, who benefits, and the taking of
personal property for public andlor private usage and same is res judicata as it has been heard and
decided in the consent decree as filed in the United States District Court, United States of
America, et, al.. versus the Northeast Ohio Regional Sewer District, 1: 1 0-cv-02895-DCN
(certified copy of the docket attached hereto (4 pages) and Eugene Holmes was present at this
hearing. All State and Federal EPA jurisdictions concerning combined sewage, sanitary and
storm, have already been agreed to before Judge Nugent as decided at 9:00 a.m. in Courtroom
15B and lasted less than one hour. On May 28, 2014, Eugene Holmes sent a fax, after reviewing
the amicus curaie's memorandum's in favor of the Appellant, Northeast Ohio Regional Sewer
District, it became apparent that the citing of the Clean Water Acts and the EPAs that the Amicus
Curaie's memorandum's sent by Thompson Hine for Cleveland Metropolitan Park District and
another sent by McMahon DeGulis on behalf of ItiTational Association of Clean Water Agencies
(NACWA) and the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) were
requesting that the court overturn the Court of Appeals decision that Northeast Ohio Regional
Sewer District lacks jurisdiction to charge a fee for storm water. It now becomes abundantly
clear that these issues are res judicata pertaining to the consent decree that was agreed to before
Page 5 of 14
Judge Nugent on June 30, 2011. It is our contention that critical issues such as total lack of
jurisdiction, eminent domain and a surtax have never been addressed by the trial court, and that
funding is available under Title I of Research and Related Programs of the Federal Water
Pollution Control Act, 33 U. S.C. 1251, et. seq., andlor the 8th District Court of Appeals and
never addressed by either the Appellant and or the Appellee with a conflict of interest and that the
Northeast Ohio Regional Sewer District's jurisdictional intrusion into what solely is the federal
published authority of the Clean Water Acts, inclusive and the United States Army Corp of
Engineers who has by a federal congressional act, in the Federal Water Pollution Control Act of
1948 as amended in 1972, 1977 and the Water Quality Act of 1987 has been provided sole
authority to issue regulatory letters of authority to enforce storm water management.
Pursuant to Federal Water Pollution Control Act (33 U.S.C. 1253 et. Seq.), Title 1- Research
and Related Programs, Section 101 (a) the objective of this Act is to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters. In order to achieve this
objective it is hereby declared that consistent with the provisions of this Act (see Exhibit 1
through 4, attached hereto).
Under Title 1, Section 105 (a) The Adininistrator is authorized to conduct in the Environmental
Protection Agency, and to make grants to any purpose of assisting in the development of
1) any project which will demonstrate a new or improved method of preventing, reducing,
and eliminating the discharge into any waters of pollutants from sewers which carry storm water
or both storm water and pollutants, or
Page 6 of 14
2) any project which will demonstrate advanced waste treatment and water purification
methods (including the temporary use of new or improved chemical additives which provide
substantial immediate improvement to existing treatment processes) or new or improved methods
to existing treatment processes), or new or improved methods ofjoint treatment systems for
municipal and industrial wastes;
(b) The Administrator is authorized to make grants to any State or States or interstate
agency to demonstrate, in river basins or portions thereof, advanced treatment and environmental
enhancement techniques to control pollution from all sources, within such basins or portions
thereof, including nonpoint sources, together with in stream water quality improvement
techniques. . . .. . . . . .
These matters have already been decided and heard before a federal judge and take precedence
and there is no mandate to charge a duplicate fee for the same services of sanitary and storm
water management that combines into an overflow system that release into Lake Erie. These
matters are res judicata and occur after the fact of resolution of a consent decree made on June
30, 2011. There is no state or federal mandate requiring a duplicate storm water fee. And to the
best of our knowledge and belief there occurs no application to the United States Army Corp of
Engineers or to the Administrator of the Federal Water Pollution Control Act for funding and/or
applications for grants for Research and Development under Section 105 of the Act. Under
Section 108 of the Act, the Pollution Control in the Great Lakes, Subsections C, there is
authorized to be appropriated twenty nillion dollars to cany out the provisions of Subsections A
and B of this section which sum shall be made available until expended.
Page 7 of 14
The Northeast Ohio Regional Sewer District is a regional legislative agency that has faifed to
apply for funding for its projects and now seeks a duplicate fee from the taxpayers of Northeast
Ohio within its jurisdiction. The matter of fees has already been decided by allocation of the 2014
President's Budget and federal consent decree and these matters occur res judicata. Any matters
not related to the cornbining of the storm and sanitary sewers including riverbeds, streams,
waterways, etc. clearly fall within the sole jurisdiction of the United States Army Corp of
Engineers who has already been provided abundant funding and an application to the proper
entity, the United States Army Corp of Engineers, in Buffalo, Ne`v York, was requested by
Eugene Hohnes to be sent to the Northeast Ohio Regional Sewer District numerous times and
awaiting written response.
Under Section 108 of the Act, (d) (1) In recognition of the serious conditions which exist in Lake
Erie, the Secretary of the Army acting through the Chief of Engineers is directed to design and
develop a demonstration Wastewater Management Program for the Rehabilitation and the
Environmental repair of Lake Erie. Prior to the initiation of detailed engineering and design, the
program along with the specific recommendations of the Chief of Engineers and recommendations
for it financing, emphasis added, shall be submitted to the Congress for statutory approval. This
authority and not addition to, and not in lieu of other wastewater studies aimed at eliminating
pollution emanating from select sources around Lake Erie.
The United States Army Corp of Engineers has been notified by Eugene Holmes of this court case
by certified mail no. 7003 0500 0000 0053 2021 received on March 5, 2014 when a copy of our
Page 8 of 14
Memorandum in Support of the Appellees position and the Eighth District Court of Appeals.
(Exhibit 5, hereto).
It is already federal statute that federal permits are required by States from the United States
Army Corp of Engineers (USARCE) as defined under in Sections 301, 502 of the Clean Water
Act of 1972.
The enforcement and a cease and desist order and determination must be made by application to
the USARCE who have full enforcement authority under Title IV of the acts, including but not
limited to only, the Federal Water Pollution Control Act of 1987 regarding the draft science
report of Streams and Wetlands to Downstream Waters, Reviews and Synthesis of Scientific
Evidence.
The United States Army Corp of Engineers is fully funded by the President's Fiscal 2013/2014
budget for discretionary funding, approved by the United States Congress that included over
$4,731 billion dollars of already supplied tax dollars for Civil Works Programs for targeted
investments in the nations infrastructure that fund the development, management, restoration and
protections of the Nation's water, wetlands and related resources.
The Army Civil Works budget funds the planning, design, construction, operation and
maintenance of projects, and focuses on the highest performing projects, and programs within
three main Civil Works mission areas: commercial navigation, flood risk management, and
Page 9 of 14
aquatic ecosystem restoration. It also funds programs that contribute to the protection of the
nation's waters and wetlands, the generation of low-cost renewable hydropower, the restoration
of certain sites contaminated as a result of the nation's early atomic weapons development
program and emergency preparedness and training to respond to natural disasters.
To be clear, their are no sewers, storm or sanitary sewers placed on the property of Eugene
Holmes. Despite this fact, the Holmes' property has been placed within the jurisdiction of the
Northeast Ohio Regional Sewer District as part of a "local" settlement agreement under the
"Takings Statute" in Lorain County Court of Common Pleas, Case No. 07 CV152082 without
personal notice, without any compensation for his property, without his permission, and without
an administrative plati for remedy as required by the United States Supreme Court Case, Kelo, et.
al. Versus Citv of New London , Connecticut 545 U S(20051_
The "Takings Statute" demands an administrative plan / development plan be put in place to take
property/funds for private and/or public use and an administrative plan for remedy which has not
been included in the settlement agreement to which Eugene Holmes has noticed the Honorable
Judge Burge, Lorain County Court of Common Pleas, and that to this date, no action has been
taken, but appears on the docket without movement. Eugene Holmes cited equal protection of
the law and that this case would be of great public interest as noted on the docket.
We, taxpayers, Eugene Holmes and Penny Sisson, et. al. have already been taxed as documented
by the President's Fiscal 2013/2014 budgets_and that the discretionary funding has already been
Page 10 of 14
.+. ^
^ .. ^ ^
provided by tax payer dollars to the United States Army Corp of Engineers who has sole
regulatory authority under Section 404 under the Clean Water Acts, inclusive.
Now, the Northeast Ohio Regional Sewer District proposes a surtax in violation of the United
States Constitution without a vote/levy of the people, without application for funds that have been
already allocated for the same purposes, without a USARCE permit and without any jurisdiction
to do so. The Appellee's position as well as the Appellant's position are in conflicts of interests
with their own storm water management programs to collect fees. Additionally, it takes the
property/funds from the people without any administrative plan for remedy as mandated in the
Kelo, et. al. Versus Citv of New London Connecticut 545 U . S(2005) and is affirmed in the
United States Sixth Circuit Court of Appeals case 13-3112 Terry Wilkins, et. Al. Versus Ohio
Department of Agriculture, 2014, now on appeal to the U.U.S. Supreme Court (Ohio Southern
District, Eastern Division of Ohio in Columbus 2:12-cv-01010).
To be clear, Eugene P Holmes' has had his property taken without compensation, without
approach for compensation, without negotiation, has been placed into a financial and or otherwise
burdensome legislative agency and position to prevent his exercise of his Fourth Amendment
rights assertion and prevention of the unlawful and illegal seizure of his property/funds without an
administrative plan for remedy, pending Judge Burges' court, Lorain County Court of Common
Pleas, Case No. 07 CV152082. It is to be noted by this court that his property has been placed in
a district that charges approximately five (5) times the amount of the sewer district that he was
Page 11 of 14
formerly in (Lorain County). It is a dangerous precedence and these decisions threaten the
constitutional rights of every citizen. This Ohio Supreme Court has the right and duty under the
separation of the powers to first of all request enlightenment from any and all institutions,
agencies, et. al. as necessary and to stop the legislative agencies from imposing levies, fees, taxes,
without a vote/levy of the people. Unfunded and/or under-funded government mandates under
Kelo v. New London, 545 US 469, Supreme Court 2005 and as affirmed by the Ohio 6th Circuit
Wilkins versus the Oho Department of Agriculture are unconstitutional as they take your personal
property/funds without an administrative plan for remedy.
In our opinion, the $3 billion dollar settlement agreement between the Northeast Ohio Regional
Sewer District and the Federal and Ohio State EPAs that was settled before the United States
District Court in Cleveland, Ohio before Judge Ngent, Northern District of Ohio, Re: RefNo.
of DOJ 90-5-1-10-08177/I, Case number: 1:10-CV-02895DCN that Eugene Holmes attended
and attempted to appear amicus curaie in numerous memorandums to the court and informed the
court the sewer agreement was a violation of the "Takings Statute" as defined in the New London
decision and the matter was never addressed on the merits of the issues.
Judge Nugent sent Eugene Homes a letter stating that the memorandums were considered by him
to be submissions and that Eugene Holmes was not a party even though his property was taken
and placed into the Northeast Ohio Regional Sewer District's service_area without an
administrative plan for full remedy, without compensation and without my permission and
violating eminent domain and "Takings Statute" by the seizure of funds/property and causing a
Page 12 of 14
1-
financial andlor otherwise undue burden, denied the right to redress our governinent and violating
these taxpayers' civil rights, equal protection of the law, freedom of speech, due process, but not
limited to only.
Conclusion:
We request the Ohio Supreme Court to affirm the Ohio Eighth District's Court of Appeals
decision and further affirm that upon further de novo review of cited jurisdictional evidence that
the Ohio Legislature does not have the right to change the definition of storm water to allow the
appellaiit to charge a fee for storm water management and that is already concreted in federal
statute with full funding available upon application and authorized permit to and by the USARCE.
Eugene Holmes' in attendance at the US District Court hearing June 30, 2011 at 9:00 a.m. in
courtroom 15B before Judge Nugent the storm water management fees/taxes were already
considered and set in statute, as the United States District Court, Northern District of Ohio, civil
docket case no. 1:10-cv-02895-DCN, Cause: 33:1319 Clean Water Act, further stating that to the
best of our knowledge and belief that there must not be a federal or state EPA unfunded mandate
that would require the imposition of fees when all avenues for funding have not been explored.
We further respectfully request de novo, that the supreme court of Ohio rule that any unfunded
mandates andlor takings under the Takings Statute are declared unconstitutional without just
compensation and an administrative plan for remedy. In Kelo versus the City of New London,
545 US 469, Supreme Court 2005, the Fifth Amendment Takings Clause provides, "nor shall
private property be taken for public use without just compensation." This provision applies to
states as well as the federal government (Chicago B&QR v. Chicago, 166 US 226 (1987). The
Page 13 of 14
•* ' :<^
Court's have interpreted the clause to ban government from taking property that belongs to Party
A only to transfer it to Party B even if the government justly compensated Partv A (in Kelo at
2661).
Respectfully yours,
^. ^ t^ HL4,
EuVene P. Holmes23 507 Royalton RoadColumbia Station, Ohio 44028440-236-8486
Page 14 of 14
-11,eiiny Sisson
Box 266Spencer, Ohio 44275330-432-3105
:-r0 z-A s ZLcy
. ° US- it^ :^-,ty
^. '... . . ^ Y .^,. .^ ^ • . ^i.^^"
. -RX
s7 &
angwy 1- O-Blice.kYr".flk.. h L 2 1 % $ ..%".z...
7. m7r"F, 14.^.^^
'vl- W4, k.r 4^a'1 a"t4
A e,wf,orA
GPrd.^ ^ 4qf' si=P . W
Of GkMViMOW 4qfhu4md-=M .
L.3NA YPam,.
SheldouBemBenjaluiu L OdawJordanGary ^°..^ WtmwTimodiy L Duff
Bftc+
(comfi.
CWYOf
--:-ts ".
&
e
106C -4mzmi' Ci 44114,
^^^^^^^ L. ^^^^v
T-boas: n -^^^^
^^^^
^^^ ^yl^^ 50--are^'°l ^velan"° p 0'hi; ? 441
M-ak L w^.:.^:: b:MR
Fv+Y30 R,.+`3Yy ^ 3:^i ^^^^:^ ^ ^•
'f•.. xi:aK1375 .bw I-q 6hn
'Icvd - ^ Ohio, 4"s^. 14
Imnes ^^ gUm&cw j..xm`^*.M- BY A. ^'--^.M^
L 6 T .'1 r'.F^
1405 Ea'; ^^&CIeV •-d, Ohio 'i 3,4
- La ;AJ,B- ^89^
Cvlumbus, ^ 43215
A , , forA rtiW ;ae aebWon of
- - + ,nx-Mn-c&. D: dlZe-9AmdSWz d^>,^m " `° t e^^^^Wawaxd&w ,,r Wb. " ^t
Y-9c V i; <Ac . wm^Y^'..^ ES DIIY3 MVC ...^ Boulevard
mari^^^ suno&^^suite
s ^>yDimct"ofLmv
I:M 1 s6017^ ^`A°^ ^MtO ^a;.5 r KiZ^ ff, ^ ^^^#^, '>^ r^C^^^^^^^
W 8'ti141PIS-f S.^..I^.. CU
3%0 &C-EdcwIae F"'
'at"z of e .. ^ He igh ^; e t al.
R.. ' a^ ^-.vv -Dx °
Andr WL S ' ri: .e
M ; -. s'`^ MGJJJ.is
133-5 Dt6fim Rvwj^ 2 16mA._COhF s 4 ::215
-w-,Yy L YW^--JRu
^^Cwftia^ 7-u._,. iq^.Y &^. ''^^^d ,^..;812 H m R .-'
!f^ ^ 4,.^' ^ S r.eaevdmd, . b
Edca M. ^pa-zaiig.^CM&af'.,^N . FAG'^`'^^ LLP^^^ ^^1055 ^St Paul pL^a t v^ t"^ ^ •^^^' .'',.^
. me Pw H hmwl, ^^ ^^35fr ^'^^ hm Road
^ ^ =-. ' OU
curiae SiWan OfApp ilee
--zr, O.:- 44275
AwAcut Cw'" in S ,rt<^r.^ ^^ ^^lee
Prose
Soicz, G's:^io 44 '. 39
AMIMSof
CIL-,^MaterAg. - aird `rOPOUMW` W. Ag - ,- . . .
t
=` ^."•^>^'^3
Nor^^^^ ,Distr^^^ of Ohio
216 -(164 -2444,4110LNEY TO BE NOTICED
V.
Movant
Stephen L. Merkel
Abyanwt
Eugene P. Ho .^ ^^
^Pr^^^ted by Stephen L. NierkelPRO SE
s d°^ted bz Eugene P. Holmes^ _ ^7 Royalton RoadCo^urnNa Station, OH 44028PRO SE
Page 3 oi-4
Date Filed # D€^^^et Texi
12I22I2010 -a2 [email protected] Gj€ )w.:.^7rytS )^".j(/ ?' jT SVLE. Filed by United States of
L 4AEZqd1AG.^ StSSC r1 35f5. < "uuL:,1.5.5^5-L...a ^V.. 4G1.^.hee$)(% K&ffiXfLsq Steven)
(Entered:
1212212010 ^ Judg e Dona;d { . N i;. tO cas^'R (C,^) ^^^^^red: 12,'2212014)
-12/22/2010 i>: ^^ _,J^^^^t to ^,^cl^ R:jIe 3, 1. In the event of as^3^1`?^3^#^ to ^. ^ 1 z'ti<^tk' J^ge sc ^^^:3i's£4 1. (CsB) ip$#^I{'C^:
^2/2';^^
1212212010 *4 2 Notice qfTr^.^ ,g ^C^gns^^ Decree Wc ^^ates of Am€^^^ (Attachments:^ 1 Propo^^kd Cf:ziy_;;ert Decree, 9 22^_pppnidsx 1 Cs?r; t'^^ Measures and Performance^riteraa, 3 A Mnad .. ^ - ^ r _ ^ k c.i .. ^..:i. 3i' x ^f,r. ng Pr€agram, # 4 Appendix 3 -
4 °° Re(^^^rements Applicable to
Pr.^^^osa'.s ft-r iC, G:'a; .>,ub $^`ct:i6}yI-S. 6 A4 send-_x 5 - FMer^^ Supplemental6 Sta tC' :iupyj-7Je^'1;;ePtal Environmental Project)
12i2_ }2JSCtF
12/23/2010^),T60, W. Ba^chu}or:, T by on b^halfof
L RoiL1S.r' 4^^ %JT^f]^f S^ !',5: t>S aaf '.S 4.^ ^/ 7•^ c. S^Si...%-'^^l+,xi^..1433tly A,^. {`L.•. /7 d) 4.YJi2^.$iatVd. 1lr l^3)/.r^L)1°+..8
g6r/d.3f / 010 - . .. ..,^ .. ................... ^^ x, ^.......n....r:.va. . 'k ^
4 :^ ^torney A,^^pe-Gd-aic SJ` ^,r .,t: ^ > ?^r^^ ^ ^., ;_1€^. bY €^^. ^^lfof Northeast{^ p4 r t
1'^`
^,z 3y
s^L.k',^^: 1Eg2/23/
y^yp^
^L3ir'^^y, ,r.^ Kiit^is !F f;y^
12123/2010 5 Attorne C^R ^ohn D. Lazzaretti filedDistrietx (La ^^^^ John) (Entered:^;^" x's:
12/i.^ ; t, ^r f tS 3
I2/23f2010 46 ^^orr,,:^ sf ^f ^ ..^^el, L Holra;^ , e^^^^^^ by John D. Lazzaretti filed by anbeha! * :=F J o fth^t^.ast w 7 7-Z
er OtKtx.,"i+'., ^ 5.[.b,^X John) ^¢ i^''..^G^C6^^g^ .^.`. ..,.' /2 0 S 0
02/01/2011 y Mwifm f0`';:0 V7?dZ'.onsx.Ka the Con^^t Decr^'v``. 'fi&ed by Movan#.^^^^phen L.
M4 -I 1.1. } ^^.t"'.dn?1'l^.ii=b^, ^ F^.^ YST . . . . .^
.^^ Fr.. -J_.^d$^ .
https:/1^^^^hnd.^^c6xdcn'cgi-ttl43,'^ktRptxp: 44s2.'0 35^6-L 1_04 06/03/2011
Nor^hern: ^isttict of Ohio Page 4 of 4
02/10/2011 08 'Ca:^e mfanafwsvp5^s c^af^nmce :^^^^^^^in^ 03rd+er ^^th ea5^ management conference^5'_'i^.^f.,n '3 a.`v 15^, b^;fe+r^. Judge Donald C.
^..ge81;n. (CQAS.tS,F 2 '^; ^J m l L ^ }
02/17/2011. 9 St^^^ ^ ^ eport. filed by ^^nite5? &.x -wv ^ ^^^eric ;,t. (f ^ l Kri;stin) (Entered: 02/11f201 1)02/17/2011 410 Jdm# Mri^ion so s'i z. awt a ^nzi?a`r^ ^Ni'dis^^^ery candresponsive
consent as a puhlZc comment^^l.^;^ J De '.a"rr Ohio S._vicr ,D,s"r;;.:i, State of0hic,, United Statesof <XtL .sa'o, s `ti ^wsti i, dfs: :; , e ^ < € ^ z^:":^^5ed Or€^f:^`FuTr1.ey Kristin)t^T^ai6:^s<^iiE^S. f ^
f ? ,'"sS
^ + -• ~• . .
03/03/2£}1 1 JI' Order r„'f,tf1z_. ^Nfo5i^!ra ;C ^ReSutc^ Doe , J( ). !-he Case Managementn.!:, 1 7,2011 :s vacated and all discovery and
responsive ^ l-adi» . l? set 27: 2011 at 10:00 AM inj ^.a.e^x&Ele5..5 ^"^ ^r' .t=E^^r6 S:.Ii3^J4`au`5,^.` (3 i^L^SCr.d^sk. 4d.J^1^4X 3s2Rf2 &)
0?/25/2011
04/01/2011
04/08/2011
04/11/2011
Motion fVl. TL... S, r ¢o, ttj,3Py,e. ' 1' ^.F•:. to 7 fi kE.. 20 d.t {"etff a S 15 <5^^a-v:1 CSLo1.' IfiJWdby MFl i GkitG EGdgMY1e P.
Holmes. (Attacbments. 4 b< t ^^ €y re5 , k.,J ^M. z: 11)^ f -
r^13 Response W L4N3C"ti'JeR 'ci SG,ii^L f; 3i^ ^^1F^3^:'^Y1^ toFGS {lFi i"^ ^^i'`3,z^ 3^-GZ! r^t"^^E)^l by ^it31'G^JC^'1'^Jt^ i9t .. uLa) (.3.irii.+Gre1.9. iV3.^- . L^4/i! )
^4 ^ecs^rs `^^s^.t:`" ^'.^:r^;^t filer^ ^s °.;n?«.:; ^:^.tes ^^^ Ac^} ^:r. S ^n) (Entered:i . ev0410 8^2`0 11
. ^^ ^^eplr TeSponse to 1' Motion fo5 A.^^^ to file additional information filed by EugeneP .
., .+3 ; ^z' ^^' I rr es. (KV) (En red 0 4 ,111 53^ ^ .
04/28/2011 =316 Ms#pw'f.:.i ?143G ci<J a^ 3°st^^d .S^^s Co^`^;r^^ ^aeld c^n4/2 rxr.,t3^^ Consent Decree set for6 f- _
w
ut't Ci^^j^sc^c^^L 5B %. 3 T^"^ C. d
+y
¢^ e F3on^.^. i.^'^{ ^'^ ^ylyyV3g6+S (Court^s¢-^}r.CE"a ^VV
^4 fLl^,£t k`:.I1^ m c,, s t..; C$> ^. t4. . i^
I hereby k`r^ ^E^SV k^s t^fs 4fBstrwneLt is acor@'^ copy of the o 'ginal on fie in my alk&
Attest Goi t M. Smkh, Claik.U.S. District CourtNorthern District of Ohlo ,
°AS' ly9o rsson c a®mee ®enns9 ^6^Si^a^A -.
Deputy Clerk
httpS://e^^ ohnd,eirc6.dcn/r-gia^^^ktRpt_pl'?^^^^44022633576-L.-1 -0- I 06/03/2011
QA€;0It^^\WA^^^2^^^ ANWAT.t}oI
FEDERAL WATER POL€;.UTIO: COz^ T111"„ A,,-,T
(33 U.S.C. 1251 et seg_)
n,.hd ACT r ^rv.s^^ ^^r ^^.¢.e?' pollatzo^± cont?^?d ^.?bvties in the Public Health Serw-ice of t3ie IPZral :iec;urity tlgenty and in the Federal Works Agency, and forother purposes.
Be it enacted by the Senate and House of Representatives of theUnited States of America in Congress assembled,
TITLE I-RESEARCH AND RELATED PROGRAMS
I3E, CLARATION £3F WAF.s 'D POLICY
SEc. 101. fu3 The objective of this Act is to resforeaxs,d .naa.in-tain the chemical, physical, and biological integrity of the Nation'swaters. In. order to achieve this objective it is hereby declared that,consistent with the provisions of this Act-
(1) it is the national goal that the discharge of pollutantsinto the navigable waters be eliminated by 1986;
(2) it is the national goal that wherever attainable, an in-terim goal of water quality which provides for the protectionand propa.gaticarx of fish, shellfish, and wildlife and provides forrecreation ui and on the water be achieved by July 1, 1983;
(3) it is the national poliey that the discharge of toxic pol-lutants in toxic amounts be prohibited;
(4) it is the nat:ional policy that Federal financial assist-ance be provided to constrzct publicly owned waste treatmentworks;
(5) it is the national poliey that areawide treatrnent man-agement planning processes be developed and implemented toassure adequate ccantrril of sources of pollutants irs each State,
(f) it is the national policy that a^najcar research. and d.ean-onstration effort be made t-m develop technology necessary tc,eliminate the discharge of pollutants into the n.a.-v-zgable waters,waters° of the, contigua-azs wne and the aceansr and
(7) it is the national policy that programs for the controlof nonpoint sources of pollution be developed and implementedin an expeditious manner so as to enable the goals of this Actto be met tbraugh the control ol' both point and nonpointsources of po3.l.ution.(b) It is the policy of the Congress to recognize, preserve, and
protect the pr.imary responsibilities and rights of States to prevent,reduce, anef ehminate pollution, to plan the development and use(including restoration, preservation, and enhancement) of land andwater resources, and to consult with the Administrator in the exer-cise of his authority under this Act."If is the poli:ey of Gongress thatthe States manage the construction grant program under tlus Actand implement the permit programs under sections 402 and 404 of
November 27, 2002
^^ ^ .^/C7OP -
QAC0_MP\WA. ^^^^ANWAT.001
1s F€^^^ WARR MOT1ON CQ MOL ACT Sec. 105
(2) appropriate and effective indicators for improNing de-tection in a timely manner in ccaastal recreation waters of thepresence of pathogens that are harmful to human health;
(3) appropriate, accurate, expeditious, and cost-effectivemethods (including predictive models) for detecting in a timelymanner in coastal recreation waters the presence of pathogensthat are harmful to human health; and
(4) guidance for State appli.cat€on of the criteria for patho-gens and pathogen indicators to be published under section304(aX9) to account for the diversity of geographic and aquaticconditicans,
(33 [T.S_C. 1254)
GRANTS FOR RESEARCH AND DEVELOPMENT
SEc. 105. (a) The Administrator is agYtharized to conduct in theEnviromneratal. Protection. Agency, and to make grants to anyState, municipality, or interuuni.cipal or interstate agency for thepurpose of assisting in the development of-
Q) any project which will demonstrate a new or improvedmethod of preventing, reducing, and eliminating the dischargeinto aray waters of pollutants from sewers which carry stormwater or both storm water and paallutan.ts; or
(2) any project which will demonstrate advanced wastetreatment and water paar.ificattisan methods (including the tem-porary use of new- or improved chemical additives which pro-vide substantial immediate improvement to existing treatmentprocesses), or new or improved methods of joint treatment sys-tems for municipal and industrial wastes;
and to include in such grants such amounts as are necessary forthe purpose of reports, plans, and apeeficatiorss in connectiontherewith.
(b) Tjie Administrator is authorzzed to make grants to anyState or States or interstate agency to demonstrate, in river basinsor portions thereof, advanced treatment and environmental en-hancement techniques to control poll.u.ti.can from all sources, withinsuch basisaa or portions thereof, including nonpoint sources, to-gether with isa. stream water quality improvesnent techniques.
(c) In order to carry out the purposes of section 301 of this .t§.ct,the lkdaninistrator is authorszeti to (1) conduct in the Elavvirron-mental Protection Agency, (-7) make grants to persons, and (3)enter into contracts with persons, for research and desnonstrationprojects for prevention of poRu:ti.on of any waters by industry in-cluding, but not bmited to, the prevention, reduction, and elimi-nation of the discharge of pollutants. No grant shall be made foraaay Project under this subsection unless the A ' strator deter-mines that such project wffl develop or demonstrate a new or im-proved method of treating industra:al wastes or otherwise preventpollution by industry, which method shall have industrywide appli-cation<
(d) In ca.rryi.ng out the provlsioiis of this section, the Adminis-trator shall conduct, on a priority basis, an accelerated effort to de-velop, refine, and achieve practical application of:
November 27, 2002
Q:\CGI^fP\WIAT+ 2\CLEANW-AT;001
- ERAL WATER Pt#LLUTIQII COUROL ACT Ses. 102
reational purposes, and the withdrawal of such waters for publicwater supply, agrieultu,ra)., industrial, a:axd other purposes. For thepurpose of this section, the Administrator is authorized to makejoint investigations wz.th any such agencies of the condition of anywaters in any State or States, and of the discharges of any sewage,industrial svastes, or substance which may adversely affect suchwaters.
(b)(1) In the survey or planning of any reservoir by the Corpsof Engineers, Bureau of Reclamation, or other Federal agency, con-sideration shall be given to ineiusion of storage for regulation ofstreanlflow, except that any such storage and water releases shallnot be provided as a substitute for adequate treatment or othermethods of controlling waste at ttie source.
(2) 'I'he need for and the value of storage for regulation ofstreamflow (other than for water quality) including but not limitedto navigation, salt water intrusion, recreation, esthetics, and fishand wildlife, shaii be determined by the Corps of Engineers, Bu-reau of Reclamation, or other Federal agencies.
(3) The need for, the value of, and the impact of, storage forwater qaality control shall be determined by the Administrator,and his views on these matters shall be set forth in any report orpresentation to Congress proposing authorazation or construction ofany reservoir including such storage.
(4) The value of such storage shah be ts.ken into account in de-termining the economic value of the entire project of which it is apart, and costs shall be allocated to -the purpose of regulation ofstre ow in a manner which will insure that all project purposes,share equitakale in the benefits of znultip3.e-pxarpose construction.
(5) Costs of regulation of streamflow features incorporated inany Federal reservoir or other impoundment under the provisionsof this Act siaaU be determined and the beneficiaries identified andif the benefits are wi.ci.espread or national in scope, the costs of suchfeatures shall be nonreim3anrsabie.
(6) No hcense granted by the Federal Power Comznission for ahydroelectric power project shall include storage for regulation ofstreamflow for the purpose Gf water quality control unless the Ad-mini:strator shall recommend its inclusion and sn.eh reservoir stor-age capacity shat): not exceed such proportion of the total storagerequi-red for the water qua€ity control pian as the drainage area ofsuch reservoir bears to the drainage area of the river basin or ba-sins involved in such water quality control plaza<
(c)(1) The Administrator shall, at the request of the Governorof aState, or a majority of the Governors when more than oneState is involved niake a grant to pay not to exceed 50 per centumof the administrative expenses of a planning agency for a periodnot to exceed three years, which period shaR begin after the dateof enactment of the Federal Water Pollation Control Act Amend-ments of 1972, if such agency provides for adequate representationof appropriate State, interstate, local, or (when appropriate) inter-national interests in the basin or portion thereof involved and is ca-pable of devei:oping an effective, comprehensive water quality con-trol plan for a basin or portion thereo£
November 27, 2002
Q. \^GMP\WA'^^R2\CLEANWAT6001
is fFIERAL WATER ^IDTION ^^ OL ACT See. 108
ing and economic feasibility and practicality of using sewage sludgematerials and other municipal wastes to diminish or prevent pollu-tion affecting water qual%ty from acid, sedimentation, or other pol-lutants and in such projects to resWre affected lands to usefulnessfor forestry, agricuiture, reereation., or rstther beneficial ptirposes_
(b) Prior to undertaking any demortstra.4^^^ pruiect under thissection in the A.ppalaebian region (as dei°'aned in section 403 of theAppalachian Regionai. Development Act of 1965, as amended), theAppa3.achian 3$egionaa^. Coznm.is-ion shall determine that such dem-onstration project is consistent with the ohjecAives of the Appa-lachian Regional Development Act of 1965, as amended.
(c) The Administrator, in selecting watersheds for the purposesof this section, shaff be satisfied that the project area will not beaffected adversely by the influx Gf acid or other mine water pollu-tion from nearby sources.
(d) Federal participation in such projects shall he subject to theconditions-
(1) that the State shall acquire any Iand or interests there-in necessary for such project; and
(2) that the State sha13 provide legal ,and practical protec-tion to the project area to insure against any activities whachwill cause future acid or other mine water poUution.(e) There is authorized to be appropriated $30,000,000 to carry
out the provisions of this sef;tion, which sum shal:l be availableuntil expended.(33 U.S.C. 1257)
POLLUTION CONTROL IN GREAT LAKES
SEC. 108. (a) The Administrator, in cooperation with other Fed-eral departments, agencies, and instrumentalities is authorized toenter into agreements with any State, political ^ubdivis:ion, inter-state agency, or other public agency, or combination thereof, tocarry out one or more projects to demonstrate new methods andtechniques and to develop prehmina.ry plans for the ehmination. orcontrol of poi.lution, within ail or any part of the watersheds of theGreat Lakes. Such projects ehafl demormtrate the engineering andeconomic feasibility and practicality of removal of poilutants andprevention of any polluting matter from, en.ter%ng into the GreatLakes in the future and other reduction and rerriediat techniqueswhich will contribute en.hstantiaUy to effective and practical meth-ods of poflutioYi prevention, reduction, or elimination.
(b) Federal participation in such projects shait be subject to theconrition that the State, political subdivision, interstate agency, orother public agency, or combination thereof,f, shai.3. pay not less than25 per centum of the actual project costs, which payment may bein anY form, including, but not hffeaiited to, land or interests thereinthat is needed for the project, and personal property or services thevalaae -of-whic.h shall be determined hy the A .stra.tor.
(c) There is authorized to be appropriated $2(),€00,000 to carryout the provisions of subsections (a) and (b) of this section, whichsum shaU be avaUahle until expended.
(el)(1) In recognition of the serious cond.ita.ene which exist inNovember 27e 2002 Lake Erie, the Secretary of the Army, acting through the Chief of
Q>\CO,MI' ^,WATE^,"2\CIsEA3,4WAT.004
Ssc_ 404 FEDERAt WATER POtLOTIDN €OIIIROE: ACT 198
ritorial seas, the contiguous zo^ie, and the ocean under section403(c), and (2) in any case where such gaaide;Ines under clause (1)alone would prohibit the specification of a:site, through the applica-tion additiona.lly of the economic isnpact of the site on navigationand anchorage.
(c) The Administrator is authorized to prohibit the specification(including the withdrawal of specfication) of any defined area asa disposal site, an.d he is authorized to de-ny or restrict the use ofany defined area, for specification (iaicluding the withdrawal of spec-ification) as a disposal site, wheuever he determines, after noticeand opportunity for public hearings, that the discharge of such ma-terials into such area will have an unacceptable adverse effect onmunicipal water supp.Iies, shellfish beds and fishery areas (includ-ing spawning and breeding areas), wildlife, or recreatianat areas.Before making such deterizinationg the..pidm.inistrator shaU consultwith the Secretary. The Admims:tra:tor shall set forth in writingand make public his f'uidings and ^..is reasons for maldng any deter¢mination under this subsection.
(d) The term ",Secretary'° as used in this section rnea.ras the Sec-retary of the Army, acthig through the Chief of Engiaieers.
(e)(I) In carrying out his functious relating to the discharge ofdredged or fill material under this section, the Secretary may, afternotice and opportu-nity for public hearing, issue general permits ona State, regional, or na.tacrnwide basis for any category of activitiesinvolving discharges of dredged or fill material a#'tlie Secretary de-termines that the activities in such category are similar in nature,will cause only minimal adverse env.irrom€eutal effects when per-forarsed separately, and wifl have only minimal cumulative adverseeffect on the environment. Any general perniit issued under thissubsection shall (A) be based on the gui.delines described in sub-section (b)(1) of this section, and (B) set forth the requirements andstandards which shall apply to any activity authorized by such gen-eral permit.
(2) No general gserinit issued under this subsection shall be fora period of more than five years after the date of its issuance and.such general permit may ^re revoked or mdil°ied by the Secretaryif, after op}^orturdty for pubhc ^aeariug, the ^ez retary determinesthat the a^^i^es authorrzed by suoh general t have an ad-verse iro^sact on the e^.E^a^rr^eut or ^•uch activi.tzes are more a^apro-priately authori7ed ^,y iudttvidual ^er^its.
f#^(1) ^.x cept a^ }^rovided aa^ parag^a^h (^; of this subsection,the discharge of riredg^e ^ar fi ii ^ateriaJm_
(A) from normal farming, silviculture, and ranching activi-ties such as plo-wiug, seeding, cultivating, minor drainage, har-vesting for the production of food, fiber, and forest products, orupland soal and water conservation practices;
(E) for the purpose of maintenance, including emergencyreconstructiou of recently damaged parts, of currently service-able structures such as dikes, dams, levees, groins, riprap,breakwaters, causeways, and bridgc abutments or approaches,and transportation structures;
(C) for the purpose of construction or maintenance of farmor stock ponds or irrigation ditehes, or the maintenance ofdrainage ditches;
November 27, 2002
Or--
Q: \C€3MP\WATE,R.9,\CLF,ANWAT.^^^
99 FEDERAL WATER #^OL1^^^^ ^ONTgOL ACT See. 301
cline in ambient water quality of the receiving waters, the Admin-istrator shall terni-nate sazch permit.
(n) FTTNDAmEN?'AI.i,X DIFFERENT FAt,"TORS.---(1.) €^ENERAL auLE.-The Administrator, with the
concurrarxce of the State, may establish an alternative require-ment under su.bsectio^.n (b)(2) or section 307(b) for a cacib :ty thatmodifies the requirements of national effluent liYni.tatian guid.e-liues or categorical pretreatment standards that would other-wise be applicable to such facflity, if the owner or operator ofsuch facility demonstrates to the satisfaction of the Adminis-trator that-
(A) the facility is fianrlamentally different wi.th respectto the factors (other than cost) specified in section 304(b)or 304(g) and eansiclerecl by the Administrator in estab-lishing such national effluent limitation guidelines or cat-c gorical pretrea.tment standCa.rds,
(B) the application-(i) is based solely on information and supporting
data submitted to the Administrator during the rlllemaking for establi.shsnent of the applicable national ef-fluent limi.ta.tion guidelines or categoricalpretreatment standard speca4"ically raising the factorsthat are fundamentally different for such facility; or
(ii) is based on irsf€srraaation and supporting datareferred to in clause (i) and information and sup-porting data the applicant did. -nrst have a reasonableopgvrtunity to submit during such rulernakaag,(C3 the alternative requirement is no less stringent
than justified by the fundamental difference; ars.e3.(D) the alternative requirement will not result in a
non-water quality environmental impact which is mark-edly more adverse than the impact considered by the Ad-ministrator in esta.blashing such national affluent Iiaazi.tzt.-tion guideline or categorical pretreatment standard.(2) `.T'imE i,li^.4I2' FOR p.7'33LIC.A.`f'1£3N8.-An application for an
alternative requirement which modifies the requirements of aneffluent limitation or pretreatment standard under this sub-section must be submitted to the Administrator within. 180days after the date on which such limi.tat€ozf; srr atandard:Ls es-tablished or revised, as the case may be.
(3) TIME LIMIT FoR DwaswoN.: The Ael3n riL._trator shaU ap-prove or deny by final agency action a:-a szu,j'if:atisn submittedunder this sub-sectian within 180 days ak;i the date such ap-plication is filed with the Adininistra:tor.
(4) SUBMISSION oF wF4^RmAnoNaThe Administrator mayallow an applicant under this suhsection to submit informationand supporting data until the earlier of the date the applica-tion is approved or olenied or the last day that the Adminis-trator has to approve or deny such applica.tiona
(5) TREATMENT OF PENDING API'^^ATI£9NS: : Far the pur-poses of this subsection, an application for an alternative re-quirement based on fianrlamentally different factors which ispc:nding on the date of the enactment of this subsection shaIlbe treated as having been subns.itted to the Administrator on
November 27, 2002
Q:\.COMP\'^Vt3.L..&'.^k4'-, \CLF,A^L`'tYt'y.^ :E.:(X03
97 ^^KRE WATER POLL1U#^ ^^^^OL AC°€ Sec. 301
(C) ADDF°3'it)?dA1. coNDiTIf3Ns. -Tlae Adrnizaistrator maynot grant a modification pursuant to an application sub-mitted under this paragraph unless the Administrator de-termines that such modification wi11 result in removal ofnot less than 58 percent of the biological oxygen demand.(on an annual average) and not less than 8€3 percent oftotal suspended solids (on amouthly average) in the dis-charge to which the application applies,
(D) PRELIMINARY DECISION DEArsuNE.-The Adminis-trator shah. announce aprelisninary decision on an applica-tion submitted under this paragraph not later than. 1 yearafter the date the ap-plicatian is submitted.
(k) In the case of any facility subject to a permit under section402 which proposes to comply with the requirements of subsection(b)(2)(A) or (b)(2)(E) of this section by replacing existing productioncapacity with an innovative production process which wi11 result inan effluent reductican significantly greater than that required bythe lianitation otherwise applicable to such facility and moves to-ward the national goal of eliminating the discharge of all pollut-ants, or with the ina'ta.ilation of an innovative control techniquethat has a substantial likelihood for enabling the facility to complywi.th the applicable effluent limata.tion by achieving a significantlygreater effluent reduction than that required by the applicable ef-fluent limitation and mGves toward the national goal of elimiuat.ingthe discharge of all pollutants, or by achieving the required reduc-tion with an innovative system that has the potential for signifi-cantly lower costs than the systems which have been determinedby the Administrator to be economically achievable, the Adminis-trator (or the State with an approved program under section 402,in consultation wa.th: the Administrator) may establish a date forcompliance under subseeti.on (b)(2)(A) or (b)(2)(B) of this section nolater than two years after the date for compliance with saeh efflu-ent limitation which would otherwise be aplalicable under such sub-section, if it is also determined that such innovative system has thepotential for industrywide appli.catilon.
(1) Other than as provided in subsection (n) of this section, theAdministrator may not modify any requirement of this section asit applies to any specific pollutant which is on the toxic pollutantlist under section 307(a)(1) of this Act.
(m)(1) The Administrator, with the concurrence of the State,may issue a permit under section 402 which modifies the require-ments of subsections (b)(1)(A) and (b)(2)(E) of this section, and ofsection 403, with respect to effluent limitations to the extent suchlimitations relate to biochemical oxygen demand and pH from dis-charges by an industrial discharger in such State into deep watersof the territorial seas, if the applicant demonstrates and the Ad-ministrator finds that-
(A) the facility for which modification is sought is coveredat the time of the enactment of this subsection by NationalPollutant Discharge Elimination System permit numberCA0005894 or CA0005282;
(B) the energy and environmental costs of meeting such re-clui.reusents of subsections (h)(1)(A) and. (b)(2)(E) and section
November 27,. 2002
r"'_`
Q:\COMP4WA^^2\CLEA^WNr.004
sec. 501 FEfIENAL WA^^R POLLUMN COMO`'t ACT 212
(1) to conduct(2) for related saia.ries, arJ t:avsl.
(i) A€7mowzAmN s3F is atathorized tobe appropriated for maldng grants under subsection (b), includingimplementation of mmasi.toriaa.g and notification program-q by the Ad-ministrator under subsection (a), $30,000,000 for each of fiscaiyears 2001 through 2005.(33 U.S.C. I346)
TITLE V--^ETNTERAL PROVISIONS
ADMINIfi 1^3...:TZC1N
SEc. 501. (a) The Acbmi-nistratctr is authorized to presrsibe suchregulations as are necessary to carry out his functions under thisAct.
(b) The Administra.ta^r, with th.e. consent of the head of anyother agency of the United States, may n.tiflize such officers andemployees of such agency as may be found necessary to assist incarrying out the purposes of this Act.
(c) Each recipient of financial assistance under this Act shatdkeep such records as the Administrator shall prescribe, incl.udin.grecords which fully disclose the amount and disposition by such re-cipient of the proceeds of such assistance, the total cost of theproject or undertaking in connection with which snch assistance isgiven or used, and the amount of that portion of the cost of theproject or undertaking supplied by other sources, and such otherrecords as wi1l facilitate an effective audit.
(d.) The Adninistrator and the CurraptroHer General of theUnited States, or any of their duly authorized representatives,shall have access, for the purpose of audit and examination, to anybooks, documents, papers, and records of the recipients that arepertinent to the grants received under this Act. For the purpose ofcarrying out audits and examinations with respect to recipients ofFederal assistance under this Act, the Administrator is authorizedto eaiter into noncompetitive procurement contracts with inde-pendent State audit organizations, consistent with chapter 75 oftitle 31, United States Code. Such contracts may only be enteredinto to the extent and in such amounts as may be pro^^.ded in ad-vance in appropriation Acts.
(e)(1) It is the purpose of this subse€.-:i.on to authorize a pro-gram which will provide official recognition by the United StatesGovernment to those industrial organizations and polati.ca:I subdivi-sions of States which during the preceding year demonstrated anoutstanding technological achievement or an innovative process,method, or sie'vice in their waste treatment and pollution abate-ment programs. The Administrator shall, in consultation with theappropriate State water iZollntion control agencies, estahlish regu-lations under vahich such recognition may be applied for and grant-ed, except that no apphcant shaU be elietbie for an award underthis subs+ectaon if such applicant ze not in total *Daupiian:ce vvi.th allapplicable water quality requirements under this Act, or otherwisedoes not have asata^fac.tory record with respect to environmental^uality.
NoVert^ver 27, 2002
^-ELO V. CITY OF NEW f,ONM:" Page 3 of 5
According to the majority, the case turned on w^^_}.ther Neikp London's plan satisfiedthe "public use" requirement or whether it was a way to confer a privatebenefit on a particular party.
RULE
The Fifth Amendments Takings Cia-use provides, in part, "nor shall privateproperty be taken for public use wi^outj-ust This provision apphesto states as well as the federal gove^^n:,n = !k "Y%.cago 3& ,QR v. Chicago, 166 US 226(1987)). The courts have interpreted the ^' a. L:<,^c j. ^ b w-i °r;:iment from takingproperty that belongs to party A only to transfer it to party B, even if thegovernment justly compensated party A tAelo, at 266 1).
DECISION
By a five to four maitn, ttie Court ^phe?d the Connecticut Supreme Court's rulingthat New London`s pla^.g served a ^aFid, Y,< N.i4; p-arpose and that t-he takz-ngs thussatisfied the Fifth Am-endmentss -rablic usfu requirement. it held that the citycarefully prepared the plan a^ici did .-J.ot ado-pt it as a way to benefit specificindividuals. Justice Kennedy tx^ tb^-c Yr=t.Jorit;,^ opinion and wrote a separateconcurrence. Jiistice O'^onnor, olnofu by Cluie f i u stiee Rehnquist and justicesScalia and Thomas, -wrote the dissenting opinion. Justice Thomas also wrote aseparate dissent.
RATIONALE
Precedent for Broad ^ ^^ ^ ^ ^eta-tion of ".^^ ^^c Use"
In. upholding New London`^ plan, the Court noted that it long ago rejected thenarrow interpretation ^^^^^blic Under thr..t snt^rpretation, a taking wasconstitutional if tf3^ public ^ouldzit;x°^^^lv use the cor^d-Mrkned propertyr. Instead, theCourt opted for a broader ^p d>;3 a t- ' ng is constitutional if itserves a public purpose, such as efirn,nav<^^^ -s -^.;.« ai-^^ blight. The Court also notedthat historically it had deferred to the iegisa -,,t> .1.-e': 9 i-idgment as to what constituteda public purpose.
The Court rehed on three cases to support its. holding. In Bem^an v. Parker (348U.S. 26 (1954)), the Court upheld ^^^^:;s --ss` plan to redevelop a blightedWashington D.C. neighborhood oxdd transfcrrin^ property to privatedevelopers. A property owner sued tdie { .ft"v" Mhl?,"i>'. it a,o.ndem ed his store, arguingthat it was not blighted and. til a, a iei was not a validpublic purpose for taking the shoVe r yli,les.^t ^..,;.^.The court deferred to thegove^^me^.t's determination t^.^^; r^ ^ a. ^a needed to be planned as a whole a-nd sawnothing in t-he Constitution that prev::n L„L- redevelop-rrient programs from treatingseveral properties as a whole (,^^lo, a:: 2 if')3).
In Hawaii Housing A€^^^^^y u. _AJ',,. da{ J(4- 6'l f.^ 229 (1984)), the Court upheld a lawpermitting Hawaii to take and tra z--^sfer lea^.^:^ ;:And to its lessees. Again it deferredto the legisiatu-re'^ determi-tiation that this p^ahc,Y ^zerved a valid public purpose:
h":I/w,^vw.cga.ct.govf2005irpt/2005-R-056OItm
^
fl ^1, ^^ ^ ^1 ^ 6/2/2014
KELO V. CITY OF NEW LG'' D0y,.dr Page 4 of 5
eliminating a Iand oligepolw, Ta:-^e s-ac^ t uha.t the state irrunediately transferred theIa.nd to private individuals 1; ^l ;-ict. the takings$ publie purpose.Consequently, the law's depen-^ td ^^=n its purpose (i.e., ehminatingthe oligopoly), not the means to acbiev^^ it brai:wterring the property to privateindividuals) (Kelo, at 2665),
Lastly, in Ruckelshaus v. Monsanto Co, f4..^^7 U'" 986 f 1984j), the Court upbeXd a lawallowing a federal agency to ^va15_Ar<<z -.a^w pess.z^;Jide -= f3-.;eadens based on tradesecrets and other data '...^, ^^s^.,1;^ ^nS?s: as long as the latter receivedjust cornpensation.d in doin^; so, it deferred to ^;^^n^ess" deter.^n.at^.on that the lawserved a pu blie purpose, rcst.e^4^:.^.g .n the pesticide ^idustry (Kelo, at2665).
^^^^^^ velopn nt Co .: -^^^^^ a Public P. .rp*se
In Kelo, the Court applied its pricrr and er^ncl.uded that taking land byeminent dornain for economic deY^E.sA.^ in tl';>s &ituation served a valid publicpurpose. It noted that promoting economic dr=^t°Fqpisfe.At is a traditional and longaccepted governmental ft;tnetityn a^;.d `_.:?re is no to dist^^^iisb: economicdevelopment from other recognized public -,-) -ur;:;oses. For this reason, the Courtrejected the premise that all e;:;:sn ot«ic development takings were unconstitutional(Kelo, at 2666).
It also concluded that the fact li.<iat de.=pIepment takings benefit privateparties and produce anci^ent.,-^f pubb:r: bene :.: s does n-ot render themunconstitutional. In support of tL<S c^^iCl "u:^1bsn, the Court observed that publicpolicies and programs often be_-iafit pn va; ;^ iints.:: f€, s4s, and sometimes, theseinterests do a better job at serving a pub"i-;.c'mair;_^t& than a government agency(e.g., a business that creates new- jobs after'rf1i:x1=°ti.ig a low-interest governmentloan to build a facility) (Kelo, at 2667)
The Court also rejected the petwr,n^^ ^ ^^ te< natwe argument that theconstitutionality of economic ^should tum on whether there isareason.able certainty that tl:e lak; ng.; s 3e-ae,115- the public. This test wouldrequire the courts to second g..:ess f Y:. ^about the likelihood that thebenefits would actually a.eerue and stop or &Iow down the development processwhile waiting for a court deei^ion 0{"ela, at. 2668).
While economic development tak3 n;^ ^^ sadsf:c' E.-he Takings Clau.se`s public userequirement, the majority indicated dh^ar Irlr.ltz;J3is ':Ss.events the states from^ ;
restricting or prohibiting the use of ex :;. 1o;-aj . 9. powers for this purpose (Kelo,at 2669).
Kennedy's Concurring Opinion
In Justice Kennedy's vievvr3 courts must exai-nine economic development takingsmore closely than other takings to see if tliey fa r; r - ; a private party rather thanprovide a public benefit. Courts can df.; this w tb.at the govemmentacted unreasonably or only to benefi, t Flh a :;, partZ,;, p added. Kennedy was satisfied
A^61^;^f^.^°"^http.//www.ega.ct.go,^=1'005trpt,,'2005-Rm05€-€)d^ t>^^ 612I201 4
.^,;^LO V. C1:°I°Y OF NEW ^03NFXa °F` Page 5 of 5
that the trial court in this case ri acr;ed its dew .s ion after closely examining thetakings and rejecting the ccy:steat oa 'Ll-,-,,t ¢--hc city acting only to benefit specificprivate interests (Kelo, at. 2670).
Dissenting Opinion
Writing the primary O'Connor argued tha.t economic developmenttaldz^^s violated the Takings C.^a us^ -jub11c use requ s cment, which sheinterpreted hterally. She rejectedi. ti -ie r sa ;s^^^^ view ss>.^ t the constitution permitsthe transfer of private property t^- developers so long as the public obtainssome incidental benefit. And s1-le asserted that it was for the courts, not thelegislative bodies to determine :: r < .se of cmincnt domain was constitutional.
O'Connor read Berman and Midki^ t, as cases w...^re, the caurt had upheld thetakings not for economic d^^^^op,-nen:: bnit for C-.lxminating harm: bhg-€t in Bermanand land ohgopoly in ^^kiff e_i -uzp>,_olcying tb.c Kelo takings, tb.c Court should nothave deferred to the city's decis;OrJs; doing so r -f^_.-;f1.^^ed the Takings Clausemeaningless and consequently remov€ ¢ ^a:r^,Y e<c^I've check on the eminent domainpower (Kelo, at 2674).
Tho ' nt
Writing a separate dissent, Justice Tb:,:^nna ., arg.{ed the Fifth Amendmentallows government to take property only y^'^,' c^'; ^.^rt intends to own theproperty or literally allow the public to use ^.. He Y.°rthe Court to reconsider itsholdings based on the Takings CI.auses historX,.^f 4neaning. In doing so, hecontrasted the way the founders ^^^ ^pu^^c ii : e' and "pub1ic welfare" to conveydifferent meanings. Over time, ih^ courts stray€;il from the literal meaning of pubhcuse to one that was closer ^^ public wei:^: re_ Lt lk:^ O'^onnorx Thomas conclud.ed thatthe Ke1o Court rendered the Takings C^^ 'U:>v. me_,^Ming1^ss by substituting "publicpurpose" for the Constitution's ::p-Liblic use" 1an. , . ,,ge (I^^ld, at 2679).
JR: ts
^^^^^^httpolfww,v.ega.et.govf20051^pV2045-Rm0560.htm 612l2014