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Another Round of EPA Delay in the Dead Zone Litigation

Ann Alexander

Posted March 19, 2014

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 EPA has a long and venerable history of being all talk and no action on the Gulf Dead Zone.  That long history just got a little bit longer yesterday.  The U.S. Court of Appeals granted the Agency an 11th-hour stay of their looming March 19 deadline imposed by the lower court last September for responding properly to our citizen petition for a rulemaking on algae-fueling pollution. 

The District Court’s order last year was a win in our lawsuit asking EPA to provide a straight answer to the question we posed in our petition, which is whether federal action to curb the pollution fueling the Dead Zone is necessary in view of the magnitude of the problem and the near-complete absence of state action.  Our lawsuit explained that EPA has been delaying taking action since 1998, when it first promised federal action but didn’t follow through, and has been wringing its hands and doing next to nothing ever since.  EPA has been a target of aggressive industry pressure not to act on the problem; and seemingly too spooked to make a decision one way or the other, it employed some impressive linguistic gymnastics to avoid actually answering the necessity question.

EPA could not even decide whether to appeal the lower court’s decision without delay – it filed a placeholder notice of appeal within 60 days as required by law, but claimed that it did not actually get approval from higher-ups to follow through with the appeal until nearly three months later.  Once it finally received that approval in February, the Agency filed a request with both the lower court and the Court of Appeals for a stay of its March 19 response deadline pending resolution of the appeal.  The lower court denied the stay request last Friday, but the appellate court granted it on Monday. 

So, EPA now has a temporary reprieve in its obligation to respond to our petition as the lower court directed.  We will be filing our brief on appeal on April 1, after which EPA will file a reply brief and the matter will be submitted for review and decision by the Court of Appeals.

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Michael BerndtsonMar 19 2014 09:47 AM

Is this about the Metropolitan Water Reclamation District of Chicagoland (MWRD)? And probably more specifically, the Treatment Plants? And even more specifically Stickney, Calumet, and O'Brien plants?

The Mississippi River watershed incompasses millions of acres of industrial style farmlands, the chemical valley of West Virginia, the shale oil and gas well fields of North Dakota, and industrial, commercial and residential centers within its 1.8 million square mile basin.

The US EPA's proposed 2015 budget is about $7.8 billion. This is really low. About 40 percent of the budget or $3.5 billion will hopefully go to water/wastewater and treatment grants. Roughly $800 million will go to enforcement and legal squabbles.

When I started working in the envirobiz, EPA's 1985 budget was $4.4 billion. This is equal to about $9 to $10 billion in 2014 dollars. In those 30 years the US has more people and more environmental problems.

Here's my point. Wouldn't it be more effective for NRDC to go after the private sector? Rather than an almost toothless federal governmental agency. Or if privatization of MWRD is an option, let the deal be done before upgrades. And then sue the bejeezus out of the private water firm, stipulating they can't pass that cost onto ratepayers.

Based on the recent USACE GLMRIS report, a likely cost for MWRD upgrades to protect Lake Michigan from carp AND the gulf from phosphates and nitrates is about $20 Billion (not including annual O&M). This is the feasibility level cost. So maybe double the number and add another $10 billion to estimate actual future construction - does not include legal.

Ann AlexanderMar 19 2014 10:05 AM

Michael, this case is not about the MWRD specifically. If you want to read about it, you can click on the link in the second paragraph.

Michael BerndtsonMar 19 2014 11:59 AM


I did click on the link you cited and then clicked on one of the links on that post. Here's where it took me to:

"Chicago and the Gulf Dead Zone: NRDC Lawsuits Address Downstream Damage"

The Mississippi River basin fans out over about a third or more of the US. Chicago's wastewater is one of the problems among many. I'm also worried about privatization. With Rahm Emanuel and potentially the new republican candidate, Rauner, in control, Illinois could become a private equity deal dreamscape bonanza. There's also that issue of wastewater biosolids management that don't sit well with me.

Ann AlexanderMar 19 2014 12:17 PM

Michael, there are two separate lawsuits. We have one lawsuit pending against MWRD, and another pending against EPA regarding the Mississippi River basin. The stay was granted in the second one, not the first one.

Michael BerndtsonMar 19 2014 03:47 PM

Ann, thanks for the clarification. I'm outside my wheelhouse, legal issues wise. My life's goal is to avoid the business end of environmental law. Weirdly enough, I enjoy being a pest here on Switchboard, which is the best enviro policy blog fwiw. Avoiding environmental policy is another goal of mine.

Bob PerryMar 20 2014 02:53 PM

Where was NRDC last summer when EPA had comments open regarding EPA specifying two Open Ocean Dumping Sites in the Gulf of Mexico? These sites are to dump the nutrient rich sediment from channel dredging directly into the ocean. Whenever sediment is prevented from going into the gulf the amount of nutrients going into the gulf will be reduced. The EPA is steering clear of treading on the Gulf's biggest polluter the USACE. Those Midwest sediments don't get to the ocean without enormous efforts of the USACE. Also the hotspot of Gulf Hypoxia is over by the Sabine Naches channel and has nothing to do with the Midwest contribution.

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