A federal judge in Akron has hired an environmental law professor in Oregon to help analyze the City of Akron’s sewer system and the proposed $837 million remedy.
U.S. District Judge John R. Adams hired Craig N. Johnston of Lewis and Clark College’s Law School in Portland to review the engineering and financial steps proposed to curtail Akron’s overflowing combined sewers, in what some see as an unusual move by the judge.
The city, the U.S. Justice Department on behalf of the U.S. Environmental Protection Agency and the Ohio Attorney General’s office on behalf of the Ohio EPA all had said Johnson’s hiring was unneeded and unwarranted, but Adams made the move after months of discussion.
Johnston, who played a key role in one Oregon sewer case, will be paid an hourly rate of $450, which will be paid equally by the city, the federal government and the state of Ohio.
The three parties had objected to the hourly rate as excessive, but Adams ruled that it was appropriate for such an expert witness. The government attorneys also sought an estimate of Johnston’s expected fees and an outline of his anticipated work.
Adams did not place a cap on the expert’s fees, but he has ordered Johnston to prepare monthly itemized statements of his expenses and fees and allow government attorneys to file objections. Adams is also asking Johnston to file one- to two-page status reports approximately every 45 days.
Johnston was officially hired on June 3 and made a one-day tour of Akron’s combined sewer overflows (CSOs) in early July.
He is expected to submit a report with recommendations to Adams, who must decide whether a proposed consent decree that the city, federal government and state all support is “fair, adequate and reasonable, as well as consistent with the public interest.”
Johnston, 56, has been charged with “reviewing the totality of the evidence,” Adams wrote in recent court documents. He “will be able to supply answers to the court that the parties have been unable or unwilling to provide,” he said.
The professor is expected to complete his review by September, and a preliminary report from Johnston is expected to be filed soon with the court, officials said.
The need for such an expert was significant because the filings are voluminous, Adams said.
“While the initial review was certainly difficult for the court to complete, further review has only become more complex,” he wrote.
“To date, not all of the court’s questions and confusion have been answered,” he said.
Independent expert
Adams explained: “In the court’s view, a true understanding of the underlying data and engineering process must be obtained to adequately review the [city’s sewer plan]. This type of engineering knowledge is beyond the record as it currently exists and beyond the court’s ability to obtain without expert assistance … Further developments have only added to the complexity of the record before the court.”
That includes a major update to the city’s Long-Term Control Plan that maps out how the sewer problem will be corrected.
The judge noted that “the benefit to the court and public of an independent expert will be substantial.”
Adams rejected suggestions that hiring such an expert would create an additional lengthy delay and additional costs. He called such objections “frivolous.”
Akron feels strongly there is no need for an expert witness and that the consent decree should be signed by the judge, said Law Director Cheri Cunningham.
The city administration will give Akron City Council members an update on the sewer case and project in a special meeting at 3:30 p.m. Monday in Conference Room 1 outside of council chambers in City Hall, 166 S. High St.
A spokesman for Adams said the judge cannot comment on a pending case.
Johnston’s history
Johnston told the Beacon Journal he was hired “to provide an independent second opinion on whether the settlement looks like a reasonable resolution.”
He said he has been involved in “lots of complex environmental settlements over the years.”
He said he had taught Adams at a law school conference in Oregon on environmental matters for federal judges several years ago.
He is a qualified expert witness and “the court finds it difficult to conceive of any valid challenge to Professor Johnston’s qualifications to assist the court in this matter,” Adams wrote.
Johnston played a key role in a combined sewer case involving Portland, Ore.
He is the founder and former president of the Northwest Environmental Advocates that sued the city in 1991 for 54 combined sewer overflows that fouled the Willamette River and Columbia Slough.
More recently, Johnston’s Portland-based Earthrise Law Center has been involved in CSOs in New Jersey, although he is not directly involved, he said.
Akron’s challenge
Akron has 34 remaining sewer outlets that annually discharge up to 2 billion gallons of raw sewage and storm water into the Cuyahoga and Little Cuyahoga rivers and the Ohio & Erie Canal.
Adams rejected a proposed consent decree in March 2011. He said the agreement troubled him because the sewer problems were polluting the Cuyahoga River in the Cuyahoga Valley National Park with high bacteria counts and pathogens and because he wanted the sewer cleanup completed far more quickly than the 18 years outlined in the plan.
A revised agreement was submitted to Adams in 2012. It calls for work to be completed by 2027.
The Ohio EPA and the city of Akron are moving forward with the plan.
Akron would be required to eliminate all untreated sewer discharges with a system of retention basins, two giant tunnels, a special treatment plant for raw sewage and storm water from overflows from one tunnel, relief sewers and improvements to the city’s sewer system.
Zero overflows would be permitted from Akron’s sewers in normal years. In rainy years, those larger overflows must be treated to reduce high bacteria counts that make the waterways unhealthy and unswimmable.
Judge critical of EPA
Adams also took a shot at the U.S. EPA in the latest court filings.
He cited an EPA document that said priority should be given to eliminating sewer overflows that affect sensitive areas like the Cuyahoga Valley park.
“… It does not appear that the EPA has been entirely faithful to its own internal policies,” he wrote.
He said he was not pleased that the proposed Akron decree is the only U.S. sewer decree that involved discharges that were exclusively into sensitive areas.
“From an initial review, it certainly appears at first blush that the EPA has further strayed from its own guidance in reaching this decree, again causing the need to examine the appropriate amount of deference that should be given this matter,” he said.
Without outside help, Adams said the court “cannot possibly evaluate the overall fairness” of the consent decree.
He added, “Perhaps more importantly, without this information, it is once again nearly impossible to evaluate how or why the EPA strayed so far from its guidance.”
Adams cited another federal guidance that suggests that the financial burden on Akron is of medium severity and that the work might be completed in 10 years, not the 15 years that has been proposed.
He questioned why the federal agency was deviating from policy in giving Akron more time. He called that “yet another unexplained substantial departure” from its policies.
Akron has argued that it cannot afford to do the work in a more timely fashion, but Adams said he is not satisfied other financing options were seriously considered.
Akron has insisted the work be paid by its 300,000 sewer customers in Akron and 13 suburbs and the city lacked other financial assets to fund the sewer work. That was never proved, the judge noted.
The court is also concerned that many of the engineering issues involved in the sewer remedy “appear to have been analyzed based upon data provided by Akron,” Adams wrote.
That, he said, “gives the court pause that many of the engineering decisions were made based upon data that may or may not have been independently verified by the EPA.”
Bob Downing can be reached at 330-996-3745 or bdowning@thebeaconjournal.com.