PUD urged to take an in-depth look for contaminants
Questions continue to swirl around the sediment backed up behind Enloe Dam — what’s in it and whether the studies done by the Okanogan County Public Utility District (PUD) satisfy clean-water laws.
At a PUD board meeting last month, a former attorney for the Environmental Protection Agency (EPA) said the commissioners may be making “several important legal errors” by not taking an in-depth look at the sediment.
Mark Ryan, now a private practice attorney with Ryan & Kuehler in Winthrop, told the commissioners that whenever there’s the potential for contaminants to be released, federal law requires all responsible parties to comply with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund.
“The Commissioners seem to believe that they can escape CERCLA liability by simply not looking into the sediments behind the dam. That is incorrect,” said Ryan in written comments summarizing his comments at the Oct. 22 meeting. During his 24 years with the EPA, Ryan specialized in legal matters connected with the clean-up of rivers and mine waste.
Enloe Dam is on the Similkameen River near Oroville. If there is contamination of the river, liability falls to the owner or operator of the dam — in this case, the PUD, said Ryan. The EPA will go after responsible parties to pay for investigation and clean-up, he said. The Superfund law also allows a third party to ask the EPA to analyze the sediment, said Ryan.
“These were Mark Ryan’s opinions,” said Jeri Timm, directory of regulatory and environmental affairs for the PUD, in an interview after the meeting. “We have our own legal opinion.” PUD legal counsel Heidi Appel called Ryan’s comments “unsolicited legal advice” and said she couldn’t discuss the matter because of attorney-client privilege.
Timm said the PUD has done the testing required by the Federal Energy Regulatory Commission (FERC), which issued a license to rebuild the dam, and that no additional testing is currently required.
While many pushing for a comprehensive sediment study would like to see the PUD remove the dam rather than reenergize it, others say it’s simply the conscientious thing to do before spending $31 million or more to rebuild Enloe. The dam hasn’t produced power for more than 50 years.
No adverse effects
The EPA works with the Washington Department of Ecology to regulate water quality. Ecology advised the PUD about sediment testing in the late 2000s as part of the FERC licensing process. The PUD tested 11 sites for total suspended sediments, said Valerie Bound, section manager for Ecology’s toxics clean-up program.
“They’re just supposed to sample. If it’s above the clean-up standards, then they have to remediate,” said Bound. “But how many samples are enough? That’s the question.”
According to an environmental report filed with FERC, the studies found arsenic concentrations exceeding water-quality criteria at several locations. Because arsenic on the Similkameen River naturally exceeds these criteria, they used those levels as a baseline. “All arsenic concentrations were below levels known to cause adverse effects,” said the report.
The study also analyzed pesticides, cadmium and copper. There were no pesticides, and cadmium and copper were below levels of concern, according to the report.
In 2008 comments on the PUD’s draft license application (DLA) for Enloe, Ecology said there had been “extensive mining upstream of the project and contaminated sediments from upstream are likely to have drifted downstream…. The discussion in the DLA about its status and the impacts of the project related to the presence of the mining waste is incomplete.”
Bound said she didn’t know if the PUD has done anything since 2008. At the time, there were no red flags because the PUD was studying the sediments and was supposed to keep Ecology in the loop, she said.
If the sediment is benign, dam removal would be much less expensive than estimated, said Ryan. On the other hand, if the PUD electrifies the dam and contamination is discovered afterward, the utility would be on the hook not only for the cost of building Enloe, but also for clean-up, he said.
Advocates for dam removal have said entities that want to see environmental benefits to the river and fish would help cover most costs of removal.
Ratepayers continue to press for a more in-depth investigation of possible contaminants. Twisp resident George Schneider said he’s neutral about the outcome of Enloe, but not about how the PUD makes its decisions. He urged the PUD to draw on the expertise of people in the community to gather information that would enable the PUD to make a well-informed decision about reelectrification versus removal.
A decision of this magnitude should be based on the facts, not assumptions, said Joseph Enzensperger, a long-time advocate for dam removal. The PUD has used ignorance about what’s in the sediment to scare everyone away from removal, he said.
At a town hall meeting in September, PUD commissioner Bill Colyar said he believed that removing the dam could unleash contaminants and risk “astronomical” costs. “If I don’t know what’s upstream from that dam, I don’t have to mitigate it. If I do know, I have to mitigate it,” he said.
Meanwhile, the path to reenergizing Enloe isn’t entirely clear. A coalition of environmental groups has sued the PUD over the dam’s effects on endangered salmon. They say the PUD didn’t adequately study the potential impact on fish.
In a separate action, the Center for Environmental Law and Policy has asked the Court of Appeals to review the second extension FERC gave the PUD to begin construction. They say FERC doesn’t have the authority to extend the license without public participation.
Ryan said he attends PUD meetings as a concerned citizen and that his comments are not connected with litigation. He told the commissioners he’d been retained by the Methow Valley Citizens Council “to assist it in understanding the legal issues involved with the Enloe Dam.”
The PUD has a design-build contract with Max J. Kuney Co. to develop a guaranteed maximum price for design and permitting (see sidebar). The extended FERC license requires the PUD to start construction by July 2019.
“It’s the recommendation of staff and the manger to continue to move forward with our licenses prescribed by FERC and to continue to work with stakeholders, both for and against Enloe Dam, to continue to try to educate to help everybody understand why we’re moving forward,” said PUD General Manager Steve Taylor at an October board meeting.