The article “Akron files federal motion to reopen agreement addressing overflowing sewers” caught my attention this morning. Requests to amend or change existing consent decrees filed with the EPA are not unheard of, especially in cities who adopted their Long Term Control Plans relatively early, after the 1994 CSO Control Policy was passed, which required all cities with combined sewer systems to put together plans to characterize and reduce and sewer overflows due to wet weather events. Since the mid-90s, and especially in the past 10 years, Green Infrastructure has risen in popularity among municipalities, who see it as cost-effective and community-enhancing infrastructure investments, and among regulators, who now not only accept Green Infrastructure as a viable technology, but even promote it as part of watershed-wide infrastructure planning. In this article however, the author states that Akron’s effort for an Integrated Plan incorporating more green infrastructure components has been twice rejected by the EPA.
The Mayor of Akron, Don Plusquellic, is quoted:
“To date, U.S. EPA, and especially the staff of Region 5, have merely paid lip service to the concept of the IP [Integrated Planning] process in Akron. … Akron must be permitted and U.S. EPA must cooperate in good faith to allow Akron to actually receive the benefit of utilizing the IP process to identify and construct projects which are better for the environment and more affordable for the citizens of Akron.”
The author of the article comments that the motion for legal action by the City of Akron was an “unexpected move” in an effort to get EPA officials to cooperate more closely with the city to produce an acceptable plan for its Combined Sewer Overflows, which can total up to 1.2 billion gallons per year. The article indicates that the proposal was rejected on November 17th, based on inadequate methodology, even though similar methodologies have been accepted by other cities. Akron was instructed by the EPA to provide “even more” in order to win federal approval.
According to the 1994 CSO Control Policy, cities have the option of meeting their obligations by either the presumption or the demonstration approach. From the the LTCPs that I have reviewed, the overwhelming major of cities opt for the presumption approach. This means that the majority of the plan approval is based on scientific knowledge of how the system would respond with the proposed improvements, ie, based on the results of the city’s hydrologic/hydraulic modeling efforts.
The major challenge with green infrastructure is that unlike conventional infrastructure, which has set geometries, surface friction, slopes, and alignments, the performance of green infrastructure and its integration with the existing environment and existing conventional infrastructure includes much more uncertainty. From underlying soil porosity and infiltration rates, to clogging and operations and maintenance, there is just so much more that the model has to include. Building a hydrological model at the scale of the municipality that includes all of these assumptions is definitely no small feat, and could cost millions of dollars, and years to parameterize and calibrate.
Once a consent order has been accepted, there are both technical and political challenges to re-opening it. Firstly, the demonstration approach that the original plan was based on must be, well, re-demonstrated for the proposed amendments. If the new plan includes green infrastructure elements, then “proof” that these elements will work as well as conventional infrastructure could be hard to produce, since green infrastructure is much more site-specific and contextual in performance than conventional infrastructure is. Since green infrastructure typically requires more surface area (land) as well, additional uncertainty may exist in how the city will acquire the land needed, which is in contrast to conventional infrastructure, which is typically located in the public right of way. Secondly, citizens and environmental groups will naturally be suspicious of why the city/utility wishes to re-open the case. Is it trying to take an easy way out to the detriment of the city’s natural waterways? Is it trying to push back fast approaching deadlines? In fact, both technical and political concerns are brought up in the Akron article.
I believe this is the first case I have observed where a city is portrayed openly at odds against its regulator with respect to incorporation of green infrastructure into a CSO LTCP. In other cases, the EPA has reiterated its “no surprises,” “collaborative” approach to regulation, especially because many post-industrial urban areas are struggling economically to manage their assets. I can think of reasons however why this particular case may be a touchy subject from both the EPA and Akron’s points of view. The highest ever injunctive action for CSO permitted municipalities due to violations of the Clean Water Act were filed on three Ohio cities, Cleveland, Bellaire, and Cincinnati, who in total incurred $3 billion dollars of compliance action costs. In August of this year, Toledo, OH received much news coverage for being forced to implement drinking water bans due to toxic algal blooms. Ohio has 87 permitted CSO facilities, out of 788 nationwide.