Notice of Lodging of Proposed Fifth Amendment To Consent Decree and Consolidated Fifth Amended Consent Decree Under the Clean Water Act

On July 10, 2024, the Department of Justice lodged a proposed Fifth Amendment to Consent Decree and Consolidated Fifth Amended Consent Decree (collectively, the “Fifth Amendment”) with the United States District Court for the Northern District of Ohio in the lawsuit entitled United States and State of Ohio v. Northeast Ohio Regional Sewer District, Civil Action No. 1:10-CV-02895-DCN.

The Consent Decree, as currently amended, requires NEORSD to construct and implement improvements to reduce the volume and number of combined sewage overflows (sanitary and commercial sewage combined with stormwater) and untreated treatment plant discharges from NEORSD's system by constructing six underground storage tunnels, other storage devices, and green infrastructure, and by increasing the capacity of each of NEORSD's sewage treatment plants. The proposed Fifth Amendment modifies two Consent Decree requirements.

First, the Fifth Amendment resolves obstacles that NEORSD has encountered in trying to meet a requirement that green infrastructure (as defined by the Consent Decree) capture at least 44 million gallons of stormwater in a typical year to allow for more storage for combined sewer flows. Instead, the Fifth Amendment will require NEORSD to increase the size of five of the deep tunnels to capture increased combined sewer flow rather than using green infrastructure alone, and to extend the time to complete the work needed to meet the 44-million-gallon capture requirement up to December 31, 2034, because of the time required to complete the tunnels. The Fifth Amendment also changes the requirement to capture 44 million gallons of storm water to a requirement to capture and store 54 million gallons of combined sewage that would otherwise be discharged without treatment into Cleveland area rivers and Lake Erie. The Fifth Amendment also shortens the time to complete the tunnels from the original requirement of December 31, 2035.

Second, the original consent decree required construction of a high-rate treatment facility capable of treating 400 million gallons per day of flow, which provides treatment to sewage flowing into the Easterly plant beyond the plant's capacity to treat such flow during a rain or snowmelt event. The proposed Fifth Amendment allows for construction of a smaller, 175-million gallon per day facility but also requires NEORSD to construct equipment of sufficient size to divert additional flows into one of the deep tunnels for treatment at the Easterly plant's main treatment facilities following a rain or snowmelt event.

The publication of this notice opens a period for public comment on the Fifth Amendment. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to United States and State of Ohio v. Northeast Ohio Regional Sewer District, D.J. Ref. No. 90-5-1-1-08177/1. All comments must be submitted no later than thirty (30) days after the publication date of this notice. Comments may be submitted either by email or by mail:

Any comments submitted in writing may be filed by the United States in whole or in part on the public court docket without notice to the commenter.

During the public comment period, the Fifth Amendment may be examined and downloaded at this Justice Department website: http://www.justice.gov/enrd/consent-decrees. If you require assistance accessing the Fifth Amendment, you may request assistance by email or by mail to the addresses provided above for submitting comments.