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News from the FriendsJune 3, 2011
Questions and Answers about Portland’s Open Reservoirs- May 2011
Do Portland's open reservoirs provide safe drinking water?
Yes. According to Dr. Gary Oxman, Multnomah County Health Officer, we have superb water and a well-designed system. There is no evidence of any environmental, chemical, microbial or bacteriological disease caused by our drinking water system.
According to Dr. Thomas Ward, an Infectious Disease expert at Oregon Health Science University, we currently have a safe water delivery system.
Is Portland required to discontinue use of the open reservoirs at Mt. Tabor and Washington Park?
No. The LT2 rule does not require that Portland discontinue the use of its open reservoirs.
It requires “changes to how open finished drinking water reservoirs are utilized, managed and/or operated. The Rule requires that water systems with uncovered finished water reservoirs, like those at Mt. Tabor and Washington Parks, either cover the reservoirs or provide treatment at the outlets of the reservoirs to inactivate Cryptosporidium, Giardia, and viruses”.
A nine-year consultant study of the open reservoirs indicated that “treatment at the outlet” is feasible. Yet, on March 25, 2009 the PWB brought a report to City Council and sought immediate approval for a $400 million reservoir burial plan to bring the City into compliance with the LT2 Rule. The Bureau stated that they must submit the plan to the EPA that very afternoon. Council was never given opportunity to consider or debate other compliance options such as variable timeframes for compliance, a open reservoir variance available through the Safe Drinking Water Act and state statute (see below), or “treatment at the outlet.”
How much will it cost to bury our water?
The PWB reservoir burial plan is estimated to cost $400 million - and likely will cost several hundred millions more with debt service. Water rates were increased by 43% over the last three years. “Deferred rate increases” account for 40% of the Bureau's requested 13.9% increase for the next fiscal year. The Water Bureau’s 5-year financial plan shows rates increasing by 85%. In addition to water rate increases the Bureau plans to continue to increase the base charge for water.
Would it be cheaper to maintain the open reservoirs than build covered storage?
Yes, we believe it would be less expensive. A consulting firm, Montgomery Watson Harza Global, was hired by the Water Bureau and studied the open reservoirs under a 9-year contract (1995-2004). In a 2001 document, that firm rated the reservoirs as being in “good condition” and listed projects (see pp. C1-5 in this link) that, if completed over a 20-year period, would maintain the safe function of reservoirs until 2050 if work started in 2003.
The majority of these projects were completed under four contracts between 2003 and 2011. A $23 million Slayden Construction open reservoir upgrade contract, which was awarded in 2007 one year after the LT2 rule was finalized, ended in March 2011. The total approximate cost of the four contracts is $45 million. Ratepayers water bills will reflect these costs over the next 25 years.
We believe a $400 million (plus debt service) new construction program for replacement of open reservoirs will be much more expensive than a reservoir variance option available to the City (see below) or low cost alternative like "treatment at the outlet".
Why isn’t Portland pursuing a delay and/or a variance to avoid “treating or covering” the reservoirs?
This is a question we ask every day. The requirement that drinking water systems “treat or cover” to treat Cryptosporidium, Giardia and viruses is a “treatment technique”. The Safe Drinking Water Act and Oregon state law includes a variance provision for “treatment techniques.”  Federal rules like LT2 (and state regulations) do not trump laws such as the Safe Drinking Water Act and state statutes, including a related law passed in 2007.
A new legal opinion confirms the availability of a reservoir variance through the State of Oregon Drinking Water Program which now has primacy for the rule. While there currently is an obstacle to this variance, we can and should repeal a April 2010 state regulation that contradicts state and federal law. On May 19, 2011, Water Bureau administrator David Shaff claimed that the Water Bureau was not made aware of the 2010 regulation. This April 2010 regulation was promulgated unbeknownst to anyone in the public watching this issue. For information on a delay see below.
New York City’s legal team confirms the availability of a reservoir variance through the Safe Drinking Water Act. Foley Hoag, the firm that represented Portland in its legal challenge also noted the availability of a “treatment technique” variance for open reservoirs citing Section 1415(a)(3) of the Act. NYC has preserved its right to apply for such a variance through its deferral request. In January 2011, reporter Scott Learn of The Oregonian confirmed that NYC is contemplating seeking a reservoir variance. That is confirmed in their 2011 Water Bond document, as is their intent to request further deferral through 2034.
In 2007, community stakeholders worked with the Oregon state legislature to pass legislation signed into law by Governor Kulongoski. The new legislation brought Oregon law into line with the Safe Drinking Water Act and made available, for the first time, a “clean water treatment technique variance” for Oregon drinking water systems with extraordinarily high water quality and rigorous protections in place. (Portland, Baker City and Bend were three such cities.) See ORS 448.135(2)
Could the City of Portland just ignore the LT2 rule?
No organization has ever suggested ignoring the rule. Securing a “treatment technique” variance or a “waiver” (either legislative or administrative) or treating at the outlet are all legitimate means of complying with this rule. And remember: the “treatment at the outlet” alternative was never independently researched and is an alternative that the PWB has never allowed the Portland City Council and the public to consider and debate.
Can Portland fight the LT2 rule?
The City can fight for a delay and/or alternative methods of compliance. Indeed, the PWB is working to secure a variance for source water treatment but has put no effort into securing a variance or alternative compliance strategy for the reservoirs.
Though the City’s policy was to pursue a “dual-track” for compliance, the PWB’s efforts with regard to defending our safe, open reservoirs has been astonishingly absent. A comparison with the efforts of New York City to defend their Hillview open reservoir reveals the PWB lack of effort.
Since 2007 the PWB has spent considerable rate-payer dollars in pursuit of a $400 million reservoir burial “track”. During the same time frame, New York City (NYC) conducted extensive sampling of their Hillview reservoir, collecting data in support of a Safe Drinking Water Act reservoir variance. NYC then submitted the data report as part of a deferral request, preserving the right to apply for a reservoir variance in the future.
The result? NYC has secured a deferral until 2028 and is seeking further extension to 2034. New York is also pursuing other critical avenues to fight unreasonable reservoir requirements.
Specifically, the City of New York is taking advantage of President Obama’s recent ( Feb. 2011) invitation to comment on streamlining or elimination of unduly burdensome federal regulations. "The EPA recently began a new retrospective review of our existing regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed, as called for by President Obama in Executive Order 13563(3 pp, 56K, About PDF). The purpose of this review is to make the Agency's regulatory program more effective or less burdensome in achieving its objectives." EPA website 
On March 18, 2011 NYC submitted substantive, detailed comments (see pp. 1-10) and very specific objections to LT2 Open Reservoir requirements (pp. 8-10), unlike the City of Portland. By late May or early June, we will see the EPA's preliminary plan for periodic retrospective reviews, as well as an initial list of regulations that the agency plans to review first.
Rochester, New York dismissed their reservoir burial plan in 2010 subsequent to an independent review which demonstrated that installation of UV reactors lowered their costs of LT2 compliance to $25 million. Their new method of compliance preserves historic open reservoirs set in city parks.
Is there a hard deadline for “treating or covering” open reservoirs?
There is no deadline in the LT2 Rule for treating or covering reservoirs. There was only a deadline for submission of a plan.
See LT2 Rule (II. Summary of the Final Rule B-3 with details in Section IV.F)
This was re-confirmed by the EPA in a personal correspondence to Stephanie Stewart of the Mt. Tabor Neighborhood Association in an email dated March 19, 2009. It reads:
Sent: Thursday, March 19, 2009 8:41 AM
Subject: Fw: LT2 Rule Non-Compliance Penalties
Public water systems subject to the LT2 Rule uncovered reservoir
requirements must have an approved schedule in place by April 1, 2009
for complying with the Rule. For systems that are not in compliance
with the requirement on April 1, EPA can issue an administrative order
to noncompliers. If a water system violates an administrative order,
EPA can assess penalties up to $37,500 per day of noncompliance. There
is no specific deadline for installing reservoir covers... the requirement is to have an approved compliance schedule in place by April 1.
Drinking Water Enforcement Coordinator
EPA Region 10 (Note: Highlighting is ours)
Fast-track deadlines for completion of reservoir work were chosen by the PWB. The process used by the Bureau for determining those deadlines and the method of compliance ignored or defied that process established by Council Resolution No. 36237 adopted by City Council on July 28, 2004. The resolution calls for “meaningful public process … in future actions related to the open reservoirs.”
The City of Rochester, New York submitted a plan with a schedule to the EPA and then withdrew and reevaluated it due to community opposition. The EPA allowed the City to re-submit a new schedule/ plan and then approved it. Why can the City of Portland not do the same and re-submit a schedule and/or plan to the State of Oregon ?
New York City (NYC) applied for and secured a delay in reservoir “treat or cover” work until 2028 seeking futher extension until 2034. In a September 2009 correspondence between Portland Water Bureau’s Ed Campbell and NYC’s Deputy Chief of the Environmental Law Division, a Deputy Chief demonstrates that, while seeking a deferral, NYC preserved their right to apply for a reservoir variance. Portland can and should do the same. New York is also pursuing other critical avenues to fight the unreasonable reservoir requirements (see above).
Additionally, the Water Bureau claims that it cannot submit a request for a delay or renegotiate the schedule based on anything other than technical issues. This is wrong there is no basis in the law to support this claim (see new legal opinion). The City can request a modification to its timeline for any reason. Importantly, since the State of Oregon now holds primacy over rule implementation, it is the State that would consider the request for a new timeline. Portland simply needs to ask.
As the State of Oregon is now the decision-maker on this issue, we feel the state will be more sympathetic to Portland’s unique circumstances and likely to grant a modification to the compliance timeline, more akin to the longer-term schedule NYC is on.
How is Rochester, NY choosing to comply with LT2 rule?
After initially planning to bury, Rochester responded to community opposition to the plan and has now chosen to comply through “treating at the outlet” at a cost of $9 million, with their total plan to cost $25 million. The PWB burial plan will cost $400 million and was never adequately studied or presented by the PWB to the public and the Portland City Council for consideration.
While the PWB has dismissed the potential for similar "treatment at the outlet", stating Rochester's system serves fewer people, this fact doesn't contribute to an informed discussion. Rochester's open storage reservoirs (set in city parks) are larger and what counts here is the amount of water flowing out of the reservoirs. The flow rate determines the cost/size. (Washington Park reservoirs will never take on the full flow of
the Bull Run.)
Is radon an issue in Portland drinking water that will be affected by eliminating our open reservoirs?
As stated in the Portland Water Bureau official Drinking Water Quality Reports, radon is a naturally occurring radioactive gas that you cannot see, taste, or smell. Radon is currently a documented problem in eastside homes and businesses. The community concern is related to the radioactive radon gases detected in Portland’s groundwater at the Columbia South Shore Wellfield . At present this gas harmlessly vents into the atmosphere through the open reservoirs. If Portland eliminates the open reservoirs the radon will remain in the water, allowing more radon to vent in schools, homes and workplaces. Radon in water transfers into the air we breathe while we wash hands, shower, flush toilets, wash dishes and wash clothes.
What is nitrification, and are closed reservoirs a risk in Portland’s system?
Cancer-causing nitrification is a process that occurs in chloraminated systems (Portland chloraminates its water) only in the absence of sunlight, i.e. covered storage reservoirs and piping. EPA now acknowledges (in its pending Total Coliform Rule revision) that the agency failed to take into account the issue of cancer-causing nitrification in promulgating the LT2 reservoir requirement.
Los Angeles has ongoing problems with nitrification in covered storage facilities. They are currently experimenting with adding UV reactors (mercury bulbs) inside their covered storage to address the public health concerns with nitrification.
Closed water storage facilities (i.e. tanks or covered reservoirs) typically have the type of bacteria which are capable of feeding on ammonia and contributing to nitrification. 
What role does sunlight play in disinfection of drinking water in open reservoirs?
Sunlight provides natural ultraviolet (UV) protection. Nitrification can only occur in the absence of sunlight in covered storage and piping. Public health officials and other utilities such as New York City have publicly acknowledged the benefits of sunlight.
What about rubberized asphalt coatings leaching into the water on a new reservoir?
A drinking water contamination problem recently occurred from an exterior rubberized asphalt coatings on a newly constructed reinforced concrete reservoir in Seattle, Washington The Water Bureau does not deny that it would apply a similar coating to new reservoirs such as Powell Butte II. The corporation that designed the Seattle tank is MWH, an engineering consultant firm that has been on retainer with the Portland Water Bureau for decades. MWH currently holds the Portland Water Bureau’s Kelly Butte LT2 tank design contract.
Can we anticipate savings if we "push the pause button"?
Considerable savings may be realized if the Portland City Council exercises oversight of the Water Bureau budget. Future project and contract costs, some of which will be presented to City Council in the very near future, must be questioned, delayed and/or adjusted.
Please note that the cost for the Powell Butte II 50 million gallon project is extremely high (at $137 million) when compared to Seattle's comparable Maple Leaf 60 million gallon project (at $57 million). Citizens would like to know why there is such a huge discrepancy in cost for similarly sized projects. Click here for the Seattle Times article referencing ratepayer and total costs.
Additionally, considerable savings can be achieved if the City applies for and secures a variance available through the Safe Drinking Water Act and Oregon State law. See legal opinion of the City of New York and new legal opinion from Portland Water Users Coalition law firm ReedSmith. Click here to read legal expert's opinion on opportunity to secure a variance and change schedule of compliance for costly and unnecessary LT2 rule. The City can’t secure a variance if it does not apply for one. And, again, the City may propose an extended time frame for compliance while reserving the right to seek a variance at a later date. (See above reference to correspondence between Ed Campbell of Water Bureau and NYC Law Department.)
What are other benefits of delaying reservoir burial and construction?
Waiting allows science to catch up with policy. Best available science must inform future EPA policy.
Waiting allows more time for scientific data collection, which can be used to support a successful variance application and/or legislation.
Waiting allows the City Council time to consider and implement recommendations from experts in Infectious Disease such as Dr. Thomas Ward, who in his March 8, 2011 letter to Commissioner Leonard states, in part:
"The best way forward in my opinion would be to ask the EPA for an extended compliance time-frame, so as to gather longer term surveillance data on both water sampling quality, and for ongoing epidemiologic data collection…
Improved data will lead to further acknowledgement of the legitimacy of our variance request by more public health experts and/or legislators.
Waiting allows the EPA and the state to institute a more accurate system of cryptosporidium monitoring: The monitoring technique currently allowed by the EPA fails to distinguish between cryptosporidium that is non-infectious and infectious, and dead versus alive. Expert researchers convened by the Water Research Foundation/ American Water Works Association are working to fix this before the next round of national source water sampling takes place in 2015. See expert White Paper here(which includes regulatory schedule). See White Paper summary here.
Waiting allows the City time to benchmark and control our costs relative to other
municipalities. When the Water Bureau plans to spend an order of magnitude more than Seattle on a similar project (see Mapleleaf project above), the City of Portland is likely spending well outside the norm at this time.
But doesn't the PWB claim that delay will cost rate-payers more money?
The PWB claims that there will be a cumulative larger rate impact with delay but, to the extent that claim is based on inflation, it is false. If all costs are considered in real present value--meaning adjusted for inflation--the costs do not change and any assertion that they will is conjecture. This was discussed by the City’s Small Business Advisory Committee (SBAC) when Bureau staff presented this argument to them. When the SBAC pointed out the argument falls flat if real present value is considered, staff conceded that costs do not actually rise. The SBAC then voted unanimously to support the community letter to City Council requesting that LT2 projects be delayed and/or halted and variances sought.
Delay provides the opportunity for City Council and the public to evaluate alternative and lower cost compliance strategies. There is no deadline in the LT2 rule for complying with the reservoir “treat or cover" requirement. There is nothing in the law or regulation that precludes renegotiation of the compliance schedule or plan.
How would delay affect longer debt term for the PWB and rate-payers?
We don't know but want to. We all should know what the difference in debt service cost would be. The PWB should provide some hard numbers to City Council and the public.
What about the "waiver" people are talking about?
A waiver could be secured through administrative or legislative action. The congressional delegation representing Cordova, Alaska introduced legislation, which did not pass, in 2010. While passage of legislation specific to Portland (or inclusive of Baker City, NYC) is challenging, we will never achieve it if the city of Portland does not request it of our congressional delegation. It took years of effort to pass federal legislation specific to Bull Run forest protections but we finally reached our goal.
What is the value of extensive sampling for Cryptosporidium recently conducted at Portland’s open reservoirs? How does it relate to the requirements of the LT2 rule or a variance for open reservoirs?
In 2008 and 2009 the Portland Water Bureau participated in the American Water Works Association Research Foundation (AwwaRF) Project 3021 “Detection of Infectious Cryptosporidium in Water.”
The Portland Water Bureau sampled 7000 liters at the outlet of Portland’s open reservoirs with zero detects of cryptosporidium while utilizing a sampling method superior to that recommended by the EPA.
The EPA’s 1623 HV sampling method has been widely criticized by municipalities and national professional associations because the agency’s approved sampling method fails to distinguish between harmless and harmful Cryptosporidium, dead or alive Cryptosporidium and between infectious and noninfectious varieties.
In a 2008 conference presentation AwwaRF 3021 researchers made this statement regarding the current EPA sampling method, “The detection of non-infectious oocysts or oocysts belonging to a species that is not infectious to humans could cause unwarranted concern for a contaminant that may not be significant public health risk.”
Portland was one of 19 utilities participating in the study and, according to the study researchers, all utilities including Portland already meet the goal of the LT2 rule based on the statistically significant sampling. The goal of the LT2 rule is to reduce the level of disease in the community.
Both the Safe Drinking Water Act and Oregon state law provide for a reservoir “treatment technique” variance. It has long been recommended by community stakeholders that the Portland Water Bureau follow NYC’s lead with regard to pursuing a reservoirs variance: collect and submit the AwwaRF 3021 cryptosporidium data (zero detects) along with Giardia and other necessary data to the State as part of a reservoir variance application.
Public health officials agree that there will be no measurable public health benefit from additionally “treating or covering” Portland’s open reservoirs. The State Drinking Water Program now has primacy over the rule but can only consider a reservoir variance application if one is submitted. The City Council should act to ensure that the PWB applies for such a variance.
What did the City of Portland's citizen reservoir panel recommend regarding Portland’s open reservoirs?
Though the LT2 draft rule released in 2003 included a mitigation option for open reservoirs, the PWB supported reservoir burial. In 2004, a city-selected 13-member reservoir panel, led by EPA’s LT2 Federal Advisory Committee consultant Mike McGuire, examined water quality, age and condition, security, and the historical significance of Portland’s open reservoirs.
The committee found Portland’s water quality to be good. The majority found no water quality, age or condition, security or other reason to justify costs associated with additionally treating or covering Portland’s open reservoirs. The majority also supported several mitigation measures.
As a result, through Council Resolution 36237, the City Council committed to retention of Portland’s open reservoirs, supported a mitigation option and authorized addressing work to begin on deferred maintenance and improved security, projects then estimated to cost $4,433,000. This work began at Mt. Tabor in 2007, one year after the LT2 rule was finalized. $45 million in deferred maintenance and improved security projects were just completed in March, 2011.
The MWH Global Mt. Tabor reservoir burial design contract was terminated as well as a PWB project to install hypalon covers over the Washington park reservoirs.
The panel ordinance called for further stakeholder involvement if the City was unable to meet the EPA’s open reservoir mitigation requirements. The ordinance further states that there should be a “meaningful public process … in future actions related to the open reservoirs.” The PWB reservoir burial plan defies the intent of the Portland City Council.
What did the Portland Utility Review Board (PURB) recommend to City Council about the reservoirs?
The composition of the PURB changes over time, as has its interest in advising the City Council on the open reservoir issue. The PURB that invested the most time, and conducted an independent study (and its Chair served on the City’s 2004 IRP [Reservoir Panel]), supported retention of Portland’s historic open reservoirs. Some members of last year’s PURB supported the Water Bureau plan. The current PURB (July 2010) has never taken up the issue. However, the Water Committee of the current PURB submitted strong recommendations to City Council (click to read) in March, 2011: the Water Bureau should improve transparency and accountability on all Capital Improvement Projects ( CIP). New reservoir construction is included in the CIP.
What does Multnomah County Health Department (MCHD) recommend about open reservoirs?
Dr. Gary Oxman, public health officer for MCHD, in March 2010 spoke publicly about the lack of science to inform the issue and the open reservoir benefits of sunlight and air. In an interview aired May 10, 2011, Dr. Oxman predicts that there will be no decrease in disease due to reservoir covering because there is no disease attributable to our current reservoir system now. (Click for audio) He supports an “open and honest” public debate.
In March, 2010 subsequent to Dr. Oxman’s presentation Multnomah County Health department supported taking Portland’s reservoirs off line.
What does a top specialist in Infectious Disease say about our open reservoirs?
According to Dr. Thomas Ward, an Infectious Disease expert at Oregon Health Science University, we currently have a safe water delivery system. He states in a March 8, 2011 to Commissioner Leonard:
“Specifically, it is my hope that the Portland Water Bureau, in cooperation with the Oregon State Public Health Division, requests an extended compliance time-frame from the EPA, along with a consideration for eventual long-term variance…
…Science, guided by carefully collected surveillance information, should determine whether the Bull Run water source and in-town reservoirs in the future require additional treatment measures.”
 City of Portland Official Statement on $73 million Water Bond document, 2010 p. 23
 Montgomery Watson Harza - Open Reservoir Study Tech Memorandum 2.7 - Water Quality Evaluation page 50 November 2001
 Montgomery Watson Harza Global - City of Portland Water Bureau Open Reservoir Study Technical Memo 5.7 Facilities Evaluation November 2001
 42 U.S.C. 300g-4
ReedSmith Opinion May 16, 2011
 See EPA Nitrification White Paper http://www.epa.gov/safewater/disinfection/tcr/pdfs/whitepaper_tcr_nitrification.pdf, section 3.2 Absence of Sunlight, page 11
 Portland Water Bureau April 21. 2011 Answers to Frequently Asked Questions about Portland’s Open Reservoirs, page 2
 “Developing a Strategy to Increase the Value of Regulatory Cryptosporidium Monitoring: Cryptosporidium Detection Method Research Needs”
White Paper Based on an Expert Workshop in Golden, Colorado, August 5-6, 2008
Web Report #4178 Water Research Foundation/American Water Works Association
 MWH Global 2003 Mt.Tabor Burial Design and Construction Oversight contract
 PURB Water Committee - PWB FY’12 B udget Recommendations
11/7/07 KGW TV
06:07 PM PST on Wednesday, November 7, 2007
By RANDY NEVES, kgw.com
A federal court says Portland must protect its drinking water from a harmful parasite. The financial cost could reach up to $500 million.
Neighbors of the reservoirs at Mt. Tabor are bracing for the worst after a federal court ruled the threat of the parasite called cryptosporidium leaves Portland's open air water supply vulnerable.
“I think Portland should not stand down. I think if the case would've been argued on scientific merit it would've won,” said Cascade Anderson Geller, a leader with the group Friends of the Reservoirs.
October 27, 2004
September 22, 2004
January 23, 2004
The Reservoirs in the News
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