CFJ raises new questions about Spokane County’s decision to go with CH2MHill given its competitor’s willingness to accept burden of meeting much lower phosphorous discharges.
In a recent letter to the Environmental Protection Agency, the Center for Justice’s lead Spokane River attorney, Rick Eichstaedt is raising sharp new questions about the Spokane County Commissioner’s decision, earlier this year, to award CH2MHill a $130 million contract to construct and operate the county’s planned sewage treatment plant.
Although the letter does not explicitly warn the agency about potential future lawsuits, it implicitly gets to what would likely be a key question if EPA and the county do face legal challenges as a result of phosphorous discharges to the
Spokane River from the plant.
That question is this: facing clearly stringent rules that tightly limit phosphorous discharges to the river, why would the county opt for a CH2MHill proposal that would put roughly twice the amount of pollution in the river as a competing plan guaranteed it would remove from the waste water stream?
EPA is in something of an awkward position with regard to the county’s high-stakes public works project. Unlike Idaho, where EPA directly permits waste water facilities, that job in Washington belongs to the state’s Department of Ecology. Ecology has given its tentative approval to the county’s plan, but it hasn’t yet signed off on the final plan and the permits the facility would need to actually discharge waste water to the river. Yet, a future lawsuit over the county’s plan would most likely name EPA because the agency ultimately has the power and responsibility for ensuring that the waste water plan and resulting permits comply with the federal Clean Water Act.
The trigger for Eichstaedt’s letter was a lengthy, March 24th technical review by an EPA engineer that seems to corroborate a fundamental criticism of the county’s approach. In soliciting proposals for its new plant, the county took the position that the most realistic specification for phosphorous removal from the waste water was a reduction to 50 µg/L. And, yet, as we reported last December in “Stuck in the Membrane with CH2MHill,” there are actually several operating sewage treatment plants that routinely get phosphorous reductions far below 50 µg/L.
And that’s what the March, 2009, memo by environmental engineer Brian Nickel corroborates. Nickel reports on page 2 of the memo that he is aware of “three existing, full-scale waste water treatment plants which, based on past performance and previous reports, consistently achieve an average monthly concentration of 25 µg/L” and another five plants that consistently achieve 35 µg/L.
Given that phosphorous, by the county’s own admission, is the main pollutant of concern in fashioning a new plant that will add a new pipe to the Spokane River, why did the county choose a bid offering that not only couldn’t meet the legally required phosphorous reductions, but why did it reject a proposal that promised to deliver substantially better results?
Eichstaedt, in his April 10th letter to Nickel, picks up on those key questions by conveying to EPA what CH2′s competitor, Veolia, reported to the County last November, after the commissioners had made a preliminary decision to go with CH2. Veolia reported it studied and rejected the membrane bioreactor (MBR) technology favored by the county and CH2 and, instead, opted for a multiple barrier process “that allowed us to guarantee a discharge of 25 µg/L of P [phosphorous]–a limit that many didn’t think would be possible.”
Maybe the county didn’t believe the promise, but Eichstaedt’s point is that if you look at the Veolia bid proposal, the county had nothing to lose because Veolia was willing to issue a warranty to the county as part of its contract that it would meet the phosphorous reduction to 25 µg/L .
To be clear, the reduction to 25 µg/L would still be higher than the 8 to 10 µg/L that would be required to ensure the discharge would comply with the Clean Water Act. But inasmuch as the county and state regulators believe they can offset phosphorous concentrations in the wastewater discharge with other approaches, the Veolia warranty at least would have offered the county a huge head start on the problem.
Wrote Eichstaedt: “Despite the guarantee of Veolia, which is one of the largest water infrastructure corporations in the world, Spokane County selected a competing bid that would guarantee a treatment level of 50 µg/L. While we realize that your memo’s analysis focused on existing technical papers and of existing facilities with DMR [discharge monitoring report] data, EPA must consider the Veolia bid in the context of what is achievable particularly given that this bid was on a facility on the Spokane River and sized comparable to, or larger than, all of the existing municipal wastewater treatment plants excluding the City of Spokane.”
Responding to criticism by Sierra Club and others, the county’s water reclamation manager, Dave Moss told the Spokesman-Review that Veolia’s bid was $30 million higher than CH2′s and that CH2 had “intimated” it could reduce phosphorous below 50 µg/L “if they needed to.”
In his November 18, 2008 letter to the county commissioners, Veolia’s Sean Haghigi insisted that Veolia’s price-tag would actually be lower because of the higher operating and maintenance costs of CH2′s MBR process.
Eichstaedt asked that his letter be made part of the EPA administrative record, which is a polite way of putting the agency on notice any state or federal regulatory decision that results in phosphorous being added to the Spokane River will be carefully scrutinized to see that it squares with the Clean Water Act.
“I want EPA to include our letter in its decision-making process for the NPDES [Clean Water Act regulated discharge] permit and the TMDL [process for regulating water quality standards],” Eichstaedt says. “To me it’s quite persuasive that 25 µg/L appears to be a number that could be guaranteed with the use of existing technology.”
–CFJ
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