With support from an unexpected source, Sierra Club issues its strongest warning to date that Spokane County’s waste water treatment plan is misguided, expensive, and unlikely to survive legal challenges.
Spokane County Commissioners should not enter into a multi-million dollar contract with CH2M Hill to design, build and operate a wastewater treatment plant that depends upon an unreliable vendor and uses technology that is incapable of meeting discharge limits to the Spokane River.
That’s the blunt message being delivered in a new, heavily-footnoted letter signed by the Club’s Spokane River Project Coordinator Rachael Paschal Osborn. Paschal Osborn also signed the letter on behalf of the Center for Environmental Law & Policy (CELP), for whom she serves as executive director. Center for Justice lawyers, who represent Sierra Club, assisted in the drafting of the letter which is dated December 1st.
One new and surprising twist in the debate is that Veolia Water Company of America, one of two prime bidders for the county’s contract, is now echoing Sierra Club’s main technical and regulatory concerns about whether the plant the county and CH2M Hill want to build can ever get a permit to discharge wastewater to the Spokane River. Cost estimates for the new plant run upwards of $100 million and the new letter sets forth the strongest challenge yet to the County to reverse direction in the face of a likely debacle.
The new Sierra Club letter, drafted with the assistance of Center for Justice attorneys, is a followup to an October 29th letter and testimony Paschal Osborn provided to the County last month.
“The County is committing over $127 million to build a wastewater treatment plant that relies on a discharge to the Spokane River,” the letter notes. And yet the regulatory obstacles are both clear and formidable. The federal permit to build the plant will require a state certification that legally can’t be issued unless and until the plant has obtained a Clean Water Act discharge permit (known as an NPDES permit). The problem is, the Spokane River is on the federal list of waterways that are out of compliance with water quality standards. In this case the problem is low dissolved oxygen and the pollutant of concern is phosphorus, a nutrient that fuels algae blooms that, in turn, cause the dissolved oxygen problem.
“Because the County is building a new plant at a site for which no plant existed,” Paschal Osborn writes, “it is a new discharger under federal and state law. Under these laws, existing dischargers who discharge into critically impaired waters and who are unable to meet necessary water quality standards may be given compliance schedules to meet these standards; new dischargers may not. Instead, new dischargers like the County must meet water quality standards upon commencement of the discharge.”
As part of the stiff warning about the regulatory problems with the county’s current strategy, Paschal Osborn also took on one of the more creative arguments the county has tried to advance. Because a new plant would accelerate the removal of septic tanks and eliminate the future demand for septic systems over the Spokane Valley aquifer, county officials have proposed that they be given credit, in the permit process, for a net decrease in phosphorous reaching the Spokane River via groundwater.
This so-called “offset” argument, she wrote, is illusory for two reasons. First, a 2007 U.S. Ninth Circuit Court of Appeals decision concluded there is nothing in the federal Clean Water Act “that provides an offset for new dischargers” putting pollution into impaired waterways. Second, she noted, the county’s efforts to date to demonstrate that a reduction in septic tanks will result in quantifiable reductions of phosphorous reaching the river via groundwater have not survived scientific scrutiny.
On these two key points, Sierra Club has won support from a surprising source: Veolia Water of North America, the international waste water treatment company that was the runner up to CH2M Hill in bidding for the county’s new plant.
“The key challenge of this project has been, and remains, the effluent discharge quality levels established for the proposed new plant,” wrote Veolia Vice President Sean Haghighi in a November 18th letter to the commissioners. “Faced with the realities of the Spokane River, the Washington Department of Ecology (DOE) established a new limit of 10 micrograms per liter (ug/L) of phosphorus (P) for Spokane County as a new discharger–a limit that is believed to push the confines of existing technologies. In turn, your Request For Proposal (RFP) established 50 ug/L of P as the discharge limit, with the intent of receiving an offset credit for the remaining P through the County’s ongoing Septic Tank Elimination Program–a controversial plan that is expected to face scrutiny and will likely face legal challenges along the way. [emphasis in original].
“Indeed, the County is all too familiar with the challenges and uncertainties associated with this project as evidenced by the first permit set back in 2002 which delayed the project for several years, and again in September of this year when the U.S. Environmental Protection Agency (EPA) announced that all permits were on hold pending the re-evaluation of the established water quality standards–standards that could become even more stringent when ultimately issues.”
It is these stark regulatory obstacles that set up the other main criticisms in the Club’s letter. Paschal Osborn argues that it would be “fiscally irresponsible” for the County to sign a twenty year contract with CH2M Hill given the unresolved questions about the design and cost of the plant, and that “CH2M Hill’s record as a service provider for the public sector raises concerns about its future performance.”
Much of the letter provides details on past instances, many in Washington state, where federal agencies have levied fines against CH2M Hill and its subsidiaries for misconduct, discrimination, and failing to act on reported safety and environmental hazards.
The letter also makes a hard push for the County to reconsider technological alternatives to the MBR (membrane bioreactor) treatment technology that the proposed CH2M Hill plant would use. Paschal Osborn cites the results of a recent EPA Region X survey of treatment technologies for phosphorous and other studies showing that sand filtration technology is not only more effective in removing phosphorous, but significantly less expensive to maintain.
“Finally,” Paschal Osborn concludes, “we would reiterate that the County has failed to date to prepare a cost-effectiveness analysis that compares the various technologies available that could achieve better phosphorous removal results and/or produce Class A reclaimed water. Until such an analysis is produced and objectively considered by the County, it is not in the public interest to enter into a contract for the construction of any plant, and certainly not the expensive facility proposed by CH2M Hill.”
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