The Port gave some examples of beneficial re-use in a 2012 newsletter.
"Sediment now placed in [CDFs] could be used to cap brownfields, create aquatic and upland wildlife habitats, nourish beaches, combine with other material for roadway construction, or fill the basements of demolished houses."
Beneficial re-use is the long-term plan nationwide, especially as states are now banning open lake disposal — it will be illegal in Ohio starting in 2020 — but Andrew Kornacki asked how the Port and EPA could talk of PCB levels in dredged sediment on one hand and then talk about using that same sediment for things like aquatic habitats and beach nourishment on the other.
"To say that the sediment's not suitable for open lake placement, but it's okay for someone's basement?" Kornacki said. "Open lake placement, that's not okay, but putting it near the shore, that's fine?"
In February, the Corps crystallized its position in a letter to Lake Erie stakeholders. After listing problems with sediment samples that the EPA had collected — the test samples were gathered from locations outside the channel, it said, and the testing methodologies didn't adhere to CWA guidelines — Buffalo District commander Karl Jansen proposed a "win-win" solution to the controversy.
"[The Corps] could complete the 2016 dredging requirement at Cleveland Harbor by placing all sediment into the [CDF] that the Port of Cleveland operates (CDF 12), provided that the Port waives its tipping fee or identifies an entity willing to reimburse the Port for its fee," Jansen wrote (italics added). "If this occurs, Ohio will obtain the benefit of the dredged material it seeks for use and U.S. taxpayers benefit because other Great Lakes harbors and national harbors will be dredged consistent with [the Corps'] dredging plan."
Said Kornacki, summing up the hostilities: "This disagreement that we're having should be based on science, but it's not."
Au contraire, said the Port of Cleveland, in a two-hour meeting with Scene at their Warehouse District Headquarters. CEO Will Friedman, sediment management director Jim White and communications chief Jade Davis refuted or clarified the above points one by one, effectively deconstructing our conspiracy.
In the first place, for absolute clarity, said Will Friedman, "the notion that we would go through all this effort — suing the federal government, spending money on engineering studies, improving our CDF, starting up these operations — just so we could entrap [the Corps] in a tipping fee scheme, I think that's kind of preposterous. It's a red herring. We're not trying to make money on this."
Friedman put the controversy in the context of the Water Resource Development Act, which says that the Army Corps is responsible for 100 percent of the cost of dredging and disposal. That's just the law. If new capacity is constructed — say a new CDF — the cost is split with a local non-federal sponsor: 75 percent federal, 25 percent local. Operating costs are 100-percent federal.
"We wanted to flip the relationship on its head," said Friedman (referencing conversations that were happening back in 2012 and 2013). "Instead of the Corps building a facility and operating a facility, we wanted to do that. We were in a better position to do that. We're local, we're on the ground. We said, we'll provide this to you — we gave them all the engineering and specs — and all you'll have to do is pay us a tipping fee based on recouping the 75 percent of the federal cost."
Not only is that arrangement authorized in Section 217 of WRDA, it was agreed upon by the Army Corps. The Corps' assistant secretary Jo Ellen Darcy, in a letter dated Oct. 1, 2014, approved a short-term dredged material management plan (DMMP) in which the Port would pay for the costs of design and expansion of CDF 12 up front (roughly $31 million) and would recover that capital investment, and ongoing operating costs, by charging a tipping fee.
Incidentally, one of the three conditions Darcy mentioned in her approval letter was that a memorandum of understanding "must address the fact that open lake disposal is currently unlikely to be accepted as a method to dispose of 80 percent of the dredged material in any new proposed 20-year DMMP."
"It wasn't just us," said Friedman. "Nobody involved in this process thought going back to open lake disposal — which was the pre-Clean Water Act method — made sense. The algal bloom problems in the Western Basin, the fact that other states have banned open lake disposal ... this was not the future."
And yet, less than three months after Darcy's approval letter, via federal court testimony from Army Corps navigation chief Jeffrey McKee, the Buffalo District determined that the federal standard for the upper reach of the Cuyahoga would thereafter be open lake placement.
"We all got blindsided," said Friedman. "This happened with no prior discussion at our task force meetings."
In the more recent back and forths, the way that the Army Corps has been framing the tipping fee arrangement — and the way we framed it above — is either disingenuous or completely false, according to the Port. Here are three specific examples:
One, the line that the Corps is pursuing open lake disposal, the cheapest method, to save money "for the American taxpayer," isn't quite accurate, said Friedman. The Corps' budget is allocated by Congress from a pot of funds generated by something called the Harbor Fund Maintenance Tax.
"It's a tax paid for by anyone receiving cargo, so ArcelorMittal would pay on the value of the iron ore it receives," Friedman said. "It's closer to a user fee. This isn't general treasury dollars going into this Harbor Maintenance Trust Fund. In my opinion, it is disingenuous to say [that the Corps is looking out for the American taxpayer]."
Two, the Corps' assertions (mentioned above) that they aren't charged tipping fees in other harbors simply isn't true. In June of 2001, the Detroit District of the Army Corps entered into a similar tipping fee agreement with Brown County, Wisconsin, to dispose of dredged material from Green Bay Harbor. In 2012, the Baltimore District of the Corps entered into a tipping fee agreement with the Maryland Department of Transportation. The Corps often cites Duluth Harbor as a model for Cleveland to emulate, but Duluth is a "meaningless and misleading comparison," if you ask the Port.
The CDF in Duluth, owned by the local Port Authority, was built by the Corps and maintained by the Corps.
"In such a case there would be no basis for non-federal interests to charge a tipping fee as there are no non-federal costs," reads a Material Management FAQ published by the Port in March.
Three, the notion that the Port is trying to make "twice as much money" by charging the Corps a tipping fee on the front end and then selling the material on the back end is also untrue. Money earned on the sale of dredged material goes toward defraying the operating costs of CDF 12. And if operating costs go down, the tipping fee goes down commensurately.
"This is all in the agreement," said Friedman, dismayed. "When the operating costs go down — if we're able to sell some of the material in the market, or if we get better at maintaining it — we rebate that back to the Army. We can't make money. We're advancing the funds, and the Corps knows this ... . Until the court tells us otherwise, we're not going to waive our tipping fee because that's tantamount to us saying, 'Okay Corps, we'll pay for everything.' It's the same as just writing a check. All we're trying to do is recover the costs."
The environmental conclusions drawn by the Army Corps are even more egregiously dishonest, said the Port, as are the implications that the controversy is more about the Port's business interests than the local economy and the environment.
"We've done this purely out of our belief that it's part of our mission to keep the shipping channel functioning, and to be protective of Lake Erie and its ecosystem," Friedman said.
Jade Davis added: "We wouldn't even operate a CDF at all unless it was environmentally necessary."
And the notion that the EPA is manipulating data to achieve their desired outcome — the Army Corps noted flaws in the EPA's samples and their testing methodologies, recall — is hypocritical. Jim White said the biggest problem the EPA had with the Army Corps' testing was the background material they tested in Lake Erie for comparison. (This has been reported.)
"The USEPA/USACE testing manual requires that you compare your sediment to undisturbed lake bottom," White explained, "and the Corps went and compared to previously dumped-on areas [what's called CLA-1, the so-called "Toxic Blob"], and said this is cleaner than that."
It's just not a legitimate basis for comparison, White said.
Furthermore, the EPA should have taken samples from the edges of the riverbed, said Jade Davis. "As a regulatory agency, they should be preparing for the worst possible outcomes."
"The Corps wants to cherrypick," said White. "They only want to sample the clean stuff. They only want to grab from the middle and from the top, but the sediment is not homogenous. No one ever thought this stuff would be suitable for open lake placement."
And White quickly explained the Toledo and Ashtabula comparisons above. In Ashtabula, the sediment being disposed in the open lake itself comes from the lake. It's not introducing new contaminants into deep water. Toledo is more complicated. There, the contaminants are very different. They're not PCBs. They're fertilized nutrients that have binded to the sediment. And while there's concern that the material may be exacerbating the algal bloom crises in Lake Erie's Western Basin, it's not a PCB problem.
"Furthermore, there's no place else to put it right now," Friedman chimed in. Toledo generates more than three times the material that Cleveland does. "They don't have the alternative. The EPA would rather not issue that permit but they also don't want to shut down the port."
Cleveland, of course, has a perfectly viable alternative that was developed with Corps approval over the past several years.
So is the debate, as the Corps suggested, no longer about science, Scene asked?
"You could say that it's about federalism," said Friedman. "This is the federal government saying, 'We don't like it when the state gets to say no to us.' But that's how the Clean Water Act was written. There was clear legislative intent. Our view here at the Port, and frankly it's international treaty, is that we don't introduce new toxins into the lake. It's just a bad practice. And anyway the Corps wants to spin it, even their data says there are PCBs in these sediments."
Looking ahead at the federal case, the state of Ohio will argue that the Corps doesn't get to self-certify. In fact, the Clean Water Act explicitly anticipated situations like these.
So even if it costs more to dispose of sediment in CDFs?
"Fine, okay," said Friedman, a Jedi knight after all, "then that's what it costs to keep people and the environment safe."