Wednesday, October 5, 2016

Army Corps Budges, But Obstacles Remain Before Cuyahoga Will be Dredged at Last

Posted By on Wed, Oct 5, 2016 at 3:27 PM

click to enlarge The Sam Laud navigates toward ArcelorMittal. - SAM ALLARD / SCENE
  • Sam Allard / Scene
  • The Sam Laud navigates toward ArcelorMittal.
The U.S. Army Corps of Engineers (the Corps) announced Monday that it would relent at last and dredge the six-mile stretch of the Cuyahoga River from Lake Erie to the ArcelorMittal steel plant. (Truly exquisite photos of that stretch here.) But the Corps's long-delayed acquiescence has been complicated yet again, this time by financial questions. 

Or rather, by one crucial financial question: Who's going to pay for it?

The Corps is "willing to voluntarily award the contract to dredge, so long as the Corps of Engineers is provided adequate assurance that [it] will be reimbursed if it is ultimately successful on the merits of this case," Corps Public Affairs Officer Andrew Kornacki wrote Scene in an email. "Before the Corps of Engineers could award a contract, the court must formalize these obligations in an Order." 

So the ball — you'll forgive me — is on the court's, not the corps', court. 

The Corps has maintained that its budget allows only for open lake disposal. That is, it would like to dump the material it dredges from the river directly into Lake Erie. The EPA has said hold your horses, fellas: Toxins from the dredged material would be harmful to the lake and its assorted bounties of marine life. (Ohio EPA was not immediately able to produce its reports and analysis on that recommendation for Scene's perusal.)

But the EPA has advised, with vocal co-signatures from the Port of Cleveland and U.S. Senators Rob Portman and Sherrod Brown, that the material should be placed in Confined Disposal Facilities along the Lake, where the material has been placed for years and where there is ample room for additional sediment. 

The Army Corps disputes the toxicity levels of the dredged materials. In its most recent report on the subject, a 202-page behemoth from February, Corps scientists and analysts called into question the EPA's material samples and testing methodologies and argued that open lake disposal would not result in any "significant or ecologically meaningful increase" in toxins.

On the contrary, the report argued, "placement of this dredged sediment at this location would serve to cap and abate significant PAH-related benthic toxicity associated with existing CLA-1 sediments in that area and result in a several-fold reduction in potential PCB bioaccumulation from sediments within a portion of that area."

[CLA-1 refers to a two-square-mile deep-water area in Lake Erie proposed for the open lake disposal.]

(Can you imagine how much fun that report was to read?) 

But more importantly, as far as the Corps is concerned, it requested a much smaller allocation from the Feds this year. The Corps' line is: if regional stakeholders would prefer CDF (as opposed to open lake) disposal, they've got to cough up the difference. 

This is all old news. The same saga played out last year until Federal Judge Donald Nugent compelled the Corps to dredge, warning that unless a depth of 23 feet was maintained along the Cuyahoga's upper channel, freighters carrying raw materials to the ArcelorMittal plant wouldn't be able to navigate with full loads. To accommodate, the bulk carriers would dump portions of their hauls — a process called "light loading" or "lightering" — at the Cleveland Bulk Terminal or elsewhere, thereby retarding commercial activity. Maritime commerce on the Great Lakes is a 24/7 operation during the shipping season (March until January), and reduced loads result in exponentially reduced inventory shortages. Those shortages at ArcelorMittal could result, Nugent said last year, in a $2 billion annual loss to the local economy. 

Chastened, the Corps complied and dredged. 

This year has been the first time in more than 20 years that the Corps has failed to dredge the channel at all, and Nugent's predictions are on the verge of coming true. 

In a blistering 17-page-motion filed last week, ArcelorMittal said it would suffer "catastrophic and far-reaching harm" if the Corps was not immediately compelled to dredge the channel. ArcelorMittal said that if inventory shortages continue — and its current levels are the lowest in five years — it may be forced to "curtail or idle" its blast furnaces, resulting in dire economic consequences for a facility that employs 1,900 and has an annual payroll of more than $280 million, not the least of which consequences would be layoffs. 

"ArcelorMittal cannot afford to stand by and wait for the State and the Corps to resolve their dispute regarding the cost of disposal in 2016," the motion read. 

Tuesday evening, Ohio senators Rob Portman and Sherrod Brown issued a joint statement on the matter. They said they met with the Corps last week to help facilitate a solution. 

"I'm pleased that the Corps has finally acknowledged the need to dredge the Cleveland Harbor this year," Portman said. "As we have said before, open lake placement of dredged material is unacceptable. Dredging the harbor channel is critical to jobs and the economy in Cleveland and Northeast Ohio, and I hope this issue is resolved as quickly as possible. We'll continue to use every tool available to make sure Lake Erie is protected."

Sherrod Brown added, "The Army Corps of Engineers' delay in dredging the Cleveland Harbor has already interrupted commerce in the area and it's past time for the Corps to fulfill its obligation to maintain the Cuyahoga River shipping channel. I'm glad the Corps has answered our call to dredge the shipping channel and to safely dispose of the sediment in a way that protects the progress we've made in cleaning up Lake Erie."

But not so fast. 

The Corps has only agreed to dredge in principal, assuming it "is provided adequate assurance" that it will be reimbursed (for the difference between Confined Disposal Facility and Open Lake dumping).

Scene's question to the Corps — which was not immediately answered — was: Why is reimbursement necessary at all? Seeing as the Corps typically dredges twice per year (at an annual cost of $6.7 million, per the July 25 declaration of the Corps' Navigation Chief Jeffrey McKee) and seeing as it has dredged zero times this year, shouldn't it have Federal money to burn?

In 2014, for instance, the Corps' Buffalo District, of which Cleveland is a part, received a Federal allocation of $9.54 million for fiscal year 2015. That was meant to fund annual dredging and five additional infrastructure "work packages."

Later in the year, the Buffalo District determined that the Federal Standard for dredging would henceforth be open lake disposal. (How the Buffalo District made that determination is unclear in McKee's 10-page statement.) But when the time came for requesting federal funds for fiscal year 2016, the District made the necessary adjustments, open lake disposal being much cheaper than CDF disposal (for reasons that have not yet been answered by the Corps).

The Federal allocation decreased (and also transposed!) from $9.54 million, ($6.7 million, or 70 percent, of which was for dredging); to $5.94 million, (an unknown amount of which was for dredging.)

But let's just, say, arbitrarily, that the $6.7 million accounts for two rounds of dredging, one in May and one in September (which is standard). Let's say each round of dredging costs $3.35 million, or one half of the $6.7 million estimate, per McKee.

Three-and-a-half million bucks is still a good deal less than 70 percent of the Corps' total 2016 allocation ($5.94 million), so it should have funds, theoretically, to engage a contractor immediately, even without an assurance of reimbursement.

The Corps' Andrew Kornacki said he would follow up on our speculative arithmetic, and assured us that, pending a court order, the Corps would work with its contractors to "get a contract awarded as soon as possible." 

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