Sludge Watch ==> Three more stoies Yakima Sludge Decision in Parker AZ

[Maureen Reilly]

Sludgewatch Admin:

The campaign slogan of Mr Howe's opponents:
Sludge : NO WAY, NO HOWE

Note as well that Yakima Compost was supposed to be a composting facility.  
But it couldn't achieve the necessary disinfection temperatures.  So the EPA 
allowed the facility to 'air dry' the sludge and allowed the sludge to be 
considered 'Class A' even though 'air drying' is not a recognized pathogen 
reduction process under the sludge regs Part 503.

Handy to have such obliging folks at EPA Region 9.


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http://www.parkerpioneer.net/articles/2007/08/28/news/parker01.txt

Yakima trial goes through second week


By John Gutekunst.. The Parker Pioneer
Monday, August 27, 2007 1:49 PM MST


The civil trial of La Paz County v. Yakima ended its second week with the 
county finishing the presentation of its case and Yakima presenting its 
case.

The Yakima Company had operated a sewage sludge drying facility next to the 
county landfill from October 2002 to early 2006. The company was under a 
contract with the county. The dried sludge, which was supposed to meet 
micro-organism reduction standards for "Class A bio-soilds," was removed and 
applied as fertilizer.

There have been numerous disputes between the two parties over matters like 
a $1 million performance bond, Yakima's alleged failure to obtain certain 
permits, and allegations of mismanagement of the facility.

The county, led by attorney Georgia Staton, focused on Yakima's alleged 
failure to meet certain obligations and failure to follow contractual and 
state-mandated guidelines for handling the sludge.

Yakima's attorneys, led by Glenn Hallman, argued the county made it 
difficult for Yakima to meet its obligations, and the county failed to 
diligently pursue a larger site for Yakima as they were required to do. They 
noted no health hazards had been linked to Yakima's operation.

FORMER DISTRICT 3 SUPERVISOR HOWE TESTIFIES

On Friday, former La Paz County District 3 Supervisor Jay Howe took the 
stand for Yakima. He acknowleged to Hallman he played a major role in 
bringing Yakima to the county. He said he saw several benefits to the 
county, including non-tax revenue for the county.

Hallman asked about a closure plan for the facility, which was supposed to 
be in place before operations began. Such a plan was vital to Yakima 
obtaining a $1 million performance bond.

Howe said Yakima had submitted a closure plan in November 2002, which was 
deemed inadequate. He said, to the best of his knowledge, Yakima was not 
informed of this rejection or of any changes the county wanted until March 
31, 2003.

In February 2003, the county supervisors voted to rescind the contract with 
Yakima over the failure to post the bond. Howe said this failure was the 
county's fault as they had not approved a closure plan.

The board approved an amended closure plan on Oct. 20, 2003. Howe said that, 
as best as he could tell, the first time Yakima was informed of the approval 
came when he mentioned it to Hallman in November 2003.

Yakima sent a bond proposal to the county, which was rejected by the 
supervisors on Dec. 15, 2003 as not being within the contract between Yakima 
and the county. Later, after more review, the proposal was declared to be 
within the contract's guidelines. It was approved by the supervisors on May 
13, 2004. The bond was approved on July 6.

Hallman asked about inspections by the county. Howe said the supervisors had 
requested weekly inspections by the community development department. He 
said the inspectors received no special training in dealing with sludge 
facilities.

Howe testified the county had considered hiring a professional firm in 2003, 
but no firms were retained.

Howe also testified he'd been asked by then-Community Development Director 
Brad Weekley to inspect the Arizona Soils (Synagro) composting facility near 
Vicksburg because he lived close to the facility. He said he saw piles of 
sludge 12 to 14 feet high.

Hallman asked about a development plan for the Yakima site, which was 
required by the U.S. Bureau of Land Management. Howe said a copy of a plan 
had been sent to him, and he forwarded it to District 2 Supervisor Cliff 
Edey to send to his contacts at BLM. He said he saw no documentation they 
ever received it.

Howe testified the supervisors took no action on finding a larger site for 
Yakima before he left the board in December 2004.

In her cross-examination, Staton asked Howe if Yakima president Jim Willett 
was his friend.

"I'd say it was more of a business relationship," Howe said.

Staton noted Howe had offered to sell his RV park to Willett. She also noted 
Howe's 2004 campaign financial disclosure statements showed a $600 donation 
from Willett, and the address given was Yakima's business office. Howe said 
he was aware of the donation, but not the address.

Staton displayed a Yakima business ledger which lists a $1,000 donation to 
Howe's reelection campaign.

Staton then described an e-mail from then-County Attorney Glenn Buckelew to 
the supervisors regarding a legal matter with Yakima. She said Buckelew had 
indicated this was privileged information not to be disseminated. However, 
Howe had forwarded the e-mail to Willett.

"You disseminated attorney-client privileged information, true?" Staton 
asked.

"I forwarded this to Jim Willett, yes," Howe answered.

"It said it was privileged, did it not?" Staton asked.

"That's what it said," Howe responded.

Staton then turned to the closure plan. She produced a letter to Hallman 
from Buckelew which stated then-County Administrator Chuck Wilson had told 
Yakima the plan had been rejected and the reasons for the rejection in late 
November 2002.

Howe said he'd seen no documentation of that communication, so he assumed 
there hadn't been any.

Staton then produced a copy of the original closure plan, which was dated 
Nov. 2, 2002. The copy had been faxed to the board of supervisors on May 3, 
2003. She remarked that, even though Willett had been informed that changes 
were needed in November, he still had not submitted an amended closure plan 
by that time.

Staton produced another fax where Howe had written in a proposed paragraph 
which would satisfy the county's needs. Willett submitted an amended closure 
plan, with the new paragraph, in October 2003.

On the matter of inspections, Howe said they were looking for violations. 
Staton said the agreement called for eight drying beds, windrows no higher 
than eight inches, and a fence around the property.

Staton asked if inspectors would need any special training to count to eight 
or notice a fence. Howe said they wouldn't.

"Did you have any special training when you inspected Synagro?" she asked.

"No, ma'am," Howe said.

Staton then turned to the development plan. Howe said he'd received a copy 
of a plan and had passed it on to Edey. The plan had been sent to him 
directly by Willett. Staton noted the contract called for Willett's 
communications with the board to go through Clerk of the Board Donna Hale.

Howe said he hadn't made a copy of the plan for himself.

"Did you ever ask Cliff at a board meeting what happened to that plan?" 
Staton asked.

"No," Howe answered.

Staton asked if Howe had read the plan. He said he'd "briefly skimmed" it.

In the plan, Staton said Willett had said Yakima had been authorized to 
develop a 250-acre site under the county's Recreational & Public Purpose 
patent with the BLM. She said there was nothing about this in the contract 
between Yakima and the county.

"Does Mr.Willett have an obligation to be accurate in his statements to 
other agencies, like BLM?" Staton asked.

"Yes," Howe replied.

In his re-direct, Hallman asked if Willett had purchased Howe's RV park. 
Howe said he hadn't.

Howe also said he supported Yakima long before his 2004 reelection campaign.

Hallman also asked if anyone from the county had ordered Yakima to stop 
operations when the closure plan and bond became an issue in November and 
December 2002. Howe said no one had. In fact, the supervisors approved 
adding more acres to Yakima's site.

As for the development plan, Howe said that, at the time it was written, 
Yakima and the county supervisors had no doubt they would be at a larger 
site in the future.

FISHER CROSS-EXAMINED

The week began on Wednesday with the conclusion of the cross-examination of 
La Paz County District 1 Supervisor Gene Fisher. Hallman asked about the 
county's pursuing a new site for Yakima. He asked if any sites other than 
the proposed 480-acre BLM site had been pursued. Fisher replied no.

Hallman produced a letter from the BLM to La Paz County from June 2002 which 
stated that, under the Recreation and Public Purpose patent held by the 
county on the land, the property could be used as a landfill, but could not 
be used for a for-profit commercial development. He said this provision was 
important to BLM, and added the county was aware of it when the contract was 
signed in September 2002.

Fisher said that statement was innaccurate. He said the county was confused 
by the letter, and later asked for clarification.

Hallman described the benefits listed for the county from the project: 
non-tax revenue, daily cover for the landfill, and a place to dispose of 
locally generated sludge. He asked if these other benefits had been added to 
make the project more acceptable to BLM.

"I have no knowledge of that," Fisher replied.

Hallman asked Fisher if he told Weekley the inspectors' reports needed to be 
stronger against Yakima. Fisher replied he told the inspectors they needed 
to report what they saw.

"They were telling me they saw things, and they weren't in the reports," he 
said.

Fisher said he'd discussed dismissing Weekley with County Administrator Huey 
Long in 2003. He said he was not happy with his performance, but Yakima was 
only a small part of that.

On re-direct, Staton asked about the letter from the BLM. Fisher said the 
letter indicated the sludge facility was considered a landfill and would be 
permitted under BLM rules.The BLM clarified things by saying it would have 
have to be under contract with the county as Yakima, a commercial entity, 
would not be a permitted user.

MORE WITNESSES FOR THE COUNTY

Another witness for the county was Layne Baroldi, who had been Legal and 
Regulatory Affairs Liaison for the Orange County, Calif. Sanitary District. 
He said his job was to oversee wastewater facilities to be sure they were in 
compliance with regulations.

Baroldi said there could be some liability for the OCSD if their sludge was 
not treated properly. He said he had some concerns about Yakima's La Paz 
County facility in early 2003 because the company had not posted the 
performance bond.

Baroldi testified Willett told him he didn't plan on obtaining a bond, and 
that Supervisors Howe and Edey weren't concerned about a bond.

"Two county supervisors, with all due respect, doesn't help me," he said.

Baroldi made a recommendation to the OCSD board of directors that they stop 
sending sludge to La Paz County.

The jury viewed a deposition given by Diane Reed, who had been Bio-solids 
Coordinator for the Arizona Department of Environmental Quality until the 
end of August 2005. In the deposition, which was taped in August 2005, she 
said she had problems dealing with Willett and Yakima. Among other things, 
she said Willett often told her one thing and said something different to 
Lauren Fondahl, regional bio-solids coordinator for the U.S. Environmental 
Protection Agency.

Reed stated she didn't understand at first just what Yakima was doing. She 
said she initially thought they were applying bio-solids to the land.

As for the finished product, Reed said she and Fondahl had not been able to 
determine if it met Class A bio-solid standards. While there are no 
restrictions on agricultural use of Class A bio-solids, there are 
restrictions on using Class B. Reed said there could be health risks if 
Class B is used where it shouldn't be.

Reed said she continually had to tell Yakima what they needed to do for 
proper testing and record keeping. She made a note on a printed copy of one 
of her e-mails from 2005 that she was "flabbergasted" she still had to tell 
Willett what he needed to do.

Reed said she'd visited the La Paz County site three times. She said there 
was no lab data on-site from any California or Arizona sludge producers, 
including documentation that any of the sludge had been treated before it 
arrived. She said Willett never provided her with any of that information.

Reed said she did not agree with ADEQ allowing Yakima to continue to operate 
during the Aquifer Protection Permit application process. However, this was 
outside her department.

Hallman asked if ADEQ had issued a cease and desist order against Yakima. 
Reed replied they had that authority, but no such order had been issued. 
Reed also said there was no evidence of health risks from Yakima or any 
groundwater contamination from them.

The county also called Johnny Lopez, who had been the foreman at the Yakima 
facility.

Lopez told Staton he had no instructions on handling the sludge or how it 
was to be spread out. He also had no instructions on properly taking samples 
for testing, nor was he told how to package such samples. He also did not 
receive instructions on keeping documentation or log books on the sludge. He 
said he did not receive instructions on these matters until 2004.

Lopez said problems with flies and odors became serious from late 2002 
through mid-2003.

Lopez said the crew learned as it went along.

In his cross examination, Hallman asked if anyone from the county visited 
the site. Lopez said District 1 Supervisor Gene Fisher had been there once 
or twice, and there were inspections from the community development 
department.

"Did anyone from the county say you were doing something wrong?" Hallman 
asked.

"No," Lopez replied.

The county also presented a taped deposition from Cindy Bentley, project 
manager for Aerotech Environmental, the lab which tested Yakima's sludge. 
She testified they repeatedly sent materials in improper containers with 
improper labeling and seals. They also did not have chain-of-custody seals 
or documentation. They also violated the six-hour "hold time" from when a 
sample is taken to when it must be tested.

George Groves, a bio-chemical engineer retained by the county, also 
testified. He gave an overview of testing rules and procedures, as well as 
the rules defining Class A and Class B biosolids. Among the restrictions on 
Class B is they cannot be applied to soil where food crops will be grown.

Groves said, based on his review of the test data, he said Yakima was not 
producing Class A bio-solids. He said they did not follow mandated 
procedures for testing and sampling.

On cross examination, Groves said he knew of no health problems associated 
with application of Yakima's product to agricultural land. He said he didn't 
know if Yakima bio-solids were applied to land used for food crops.

OTHER YAKIMA WITNESSES

The jury also saw a deposition from Lisa Ritchie of ADEQ's Water Quality 
Division, who had been called as a witness for Yakima. She said she was 
project manager for applicants seeking an aquifer protection permit. She 
gave her deposition on Sept. 27, 2005.

Ritchie said the purpose of an APP is to protect groundwater supplies from 
contamination.

Ritchie gave an overview of the permit process. She said Yakima submitted an 
application in September 2004, almost two years after they began operations.

Ritchie said it was an administrative decision to allow Yakima to continue 
to operate while the APP application was being processed.

Ritchie said she visited the Yakima site several times, including once in 
July 2005. She said she notified Willett of her visit, but not county 
officials. She said she wanted to familiarize herself with the facility, as 
this was her first sludge operation.

Ritchie said she reviewed some records and documents, but only as they 
applied to the APP. She said Reed had seen some pooling of water at the base 
of the windrows, but she didn't see any on her visits. She did see some 
pooling at the truck washing facility, and told Willett this was not 
acceptable. She was concerned about run-off from water coming in contact 
with the sludge.

Ritchie said she also had some sit-down meetings with Reed to discuss 
Yakima. She said Reed's comments did not affect her opinion on Yakima as 
regards to an APP.

Unlike Reed, Ritchie said Yakima had complied with all her requests for 
information.

Ritchie said she saw no evidence any groundwater was being contaminated by 
Yakima

The APP was awarded in June 2007.

Dr. Charles Gerba was called to the stand. A micro-biologist, his specialty 
is studying how dieseases are transmitted. He has written over 500 books and 
papers, including textbooks, on the subject.

Gerba testifed that, if Yakima had not followed proper sampling and testing 
procedures, it would likely not have affected the test results. He said, if 
the results were changed, it would have worked against Yakima as there would 
likely be a higher level of micro-organisms (bacteria, viruses) than if they 
had followed procedures.

Yakima would have been more likely to fail the tests for Class A bio-solids 
if they had not followed the proper procedures.

"So all of these alleged violations were to Yakima's disadvantage?" attorney 
Jeff Kuykendal asked.

"Yes," Gerba replied.

He added he was not advocating anyone violate the regulations. He said the 
regulations tend to be "ultra-conservative" as a safety precaution.

Staton asked if Gerba would recommend a government entity deal with a 
company which violated procedures. He said he would not.

Under further cross-examination, Gerba said he had not visited the Yakima 
site, had not spoken to Willett, Lopez, or Reed, and had not reveiwed any 
log books.

In re-direct Gerba said he was not there to talk about Yakima specificially, 
but rather the general science of micro-biology.

The trial resumed at 9 a.m. on August 28.

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La Paz loses Yakima case; company awarded $9.2 million


By John Gutekunst
Tuesday, September 4, 2007 4:21 PM MST


In the case of La Paz County v. Yakima Compost Co., a jury has found in 
favor of Yakima and has awarded them $9.2 million in damages.

The verdict was handed down on Sept. 4, in La Paz County Superior Court. The 
trial had lasted 10 days over a three-week period.

Yakima had operated a sewage sludge drying facility next to the county 
landfill on land the county received from the Bureau of Land Management. The 
county and Yakima signed an agreement for the facility in September 2002.

There had been disputes between the county and Yakima. The county alleged 
mismanagement of the facility, and claimed Yakima breached the contract by 
not having a closure plan is place when they started operations, failing to 
post a performance bond and failing to obtain an Aquifer Protection Permit 
from the Arizona Department of Environmental Quality.

Yakima claimed the county's actions made it impossible for them to obtain 
the bond or meet other obligations.

By a 9-3 vote, the jury found the county breached its agreement with Yakima; 
that Yakima was harmed by the county; and that Yakima was entitled to 
damages.

The jury also found Yakima did not materially breach its contract with the 
county; the county was not harmed by Yakima; and the county was not entitled 
to any damages.

The reaction of La Paz County officials contacted by the Pioneer to the 
verdict was disbelief.

District 3 Supervisor Mary Scott said she was "shocked" by the verdict. 
Scott attended the trial as an observer for the county.

Scott noted that, on the stand, Yakima President Jim Willett admitted he 
began operations without a closure plan in place, even though the contract 
required him to have one.

Willett testified that then-District 3 Supervisor Jay Howe told him to go 
ahead. He stated under oath he understood Howe was only one member of the 
board, and he had no authority to waive any portion of the contract.

"He himself admitted he broke the contract," Scott said.

Scott said she also did not understand the dollar amount of the damages. She 
said the jury heard testimony that one of Willett's two biggest customers, 
the Orange County Sanitation District, had decided on its own to stop 
sending sludge to the Yakima facility early in 2003. She said the district 
board gave Willett a list of items he needed to do for them to start sending 
Yakima their sludge again, but he didn't do any of them.

Scott praised the county's attorney, Georgia Staton, saying she did a great 
job.

District 1 Supervisor Gene Fisher was also surprised by the verdict.

"I am speechless," he said. "I cannot image how they reached that verdict."

Interim County Administrator Donna Hale said she was "sickened" by the 
verdict.

"I cannot believe they voted against us," Hale said. "It's very 
disheartening."

Over the course of the trial, Yakima's attorney, Glenn Hallman, acknowledged 
the company failed to obtain the peformance bond. However, he said this was 
the county's fault as they did not approve a closure plan for the facility.

The facility was shut down early in 2006 under a provision of the contract 
which allowed the county to shut it down if an adequate alternative site had 
not been found after three years.

Hallman argued the county never diligently pursued the site, as the contract 
required them to do.

For more on the trial testimony, read the earlier story, "Yakima case goes 
to the jury."

http://www.parkerpioneer.net/articles/2007/09/05/news/parker01.txt


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La Paz loses Yakima case


By John Gutekunst
Monday, September 10, 2007 3:40 PM MST


The jury has spoken in the case of La Paz County v. Yakima Compost Co. After 
a 10-day trial over three weeks, the jury found in favor of Yakima and 
awarded them $9.2 million in damages.

The verdict was handed down on Sept. 4 in La Paz County Superior Court.

There was some confusion as to whether the vote was 9-3 in favor of Yakima 
or 11-1. Only nine of the 12 jurors signed the verdict. A minimum of eight 
were needed. After the verdict was announced, the jury was polled. Eleven 
jurors said they voted in favor of Yakima.

The jury was polled a second time. This time, they were asked if they had 
signed the verdict. Nine said they had and three said they hadn't.

With nine jurors having signed the verdict, the official tally was 9-3 in 
favor of Yakima.

Yakima had operated a sewage sludge drying facility next to the county 
landfill on land the county received from the Bureau of Land Management. The 
county and Yakima signed an agreement for the facility in September 2002.

The facility was supposed to dry sludge in the sun, which would also kill 
micro-organisms in the sludge. The finished product needed to be tested in a 
state-certified lab to determine if it met the standards for "Class A" 
bio-solids. If it did, then it could be shipped out and used as fertilizer.

When it was initially proposed in 2002, the projection was the facility 
could bring the county more than $200,000 annually in host fees.

There had been disputes between the county and Yakima. The county alleged 
mismanagement of the facility, and claimed Yakima breached the contract by 
not having a closure plan in place when they started operations, failing to 
post a performance bond and failing to obtain an Aquifer Protection Permit 
from the Arizona Department of Environmental Quality.

Yakima claimed the county's actions made it impossible for them to obtain 
the bond or meet other obligations.

The jury found the county breached its agreement with Yakima; that Yakima 
was harmed by the county; and that Yakima was entitled to damages.

The jury also found Yakima did not materially breach its contract with the 
county; the county was not harmed by Yakima; and the county was not entitled 
to any damages.

Repeatedly throughout the trial, Georgia Staton, the attorney for the 
county, brought up violations of the contract by Yakima: the failure to 
present a closure plan and post a performance bond until 2004, the failure 
to adequately train Yakima employees in handling the sludge, taking and 
packaging samples for testing, and keeping records; the presence of sludge 
in windrows for drying more than eight inches high; and Yakima's failure to 
put a fence around the property.

Yakima's attorney, Glenn Hallman, noted the facility had never been cited by 
the county, ADEQ, or the U.S. Environmental Protection Agency. He also said 
Yakima's finished product never failed to meet standards for Grade A 
bio-solids, even if Yakima didn't always follow proper procedures. Witnesses 
for Yakima said that, by not following the procedures, Yakima's product was 
actually more likely to fail these tests.

Hallman also argued the county kept Yakima from posting the contractually 
mandated performance bond by not approving a closure plan for the facility, 
or even telling Yakima President Jim Willett what they wanted in such a 
plan. Once the county board of supervisors approved a plan, Hallman noted 
Yakima submitted a bond proposal.

According to figures provided by Interim County Administrator Donna Hale, 
the county has spent $686,051.06 on legal bills from their dealings with 
Yakima from fiscal year 2002-03 through September 2007. Hale said those 
figures did not include the cost of the trial.

The reaction of La Paz County officials contacted by the Pioneer to the 
verdict was disbelief.

District 3 Supervisor Mary Scott said she was "shocked" by the verdict. 
Scott attended the trial as an observer for the county.

Scott noted that, on the stand, Yakima President Jim Willett admitted he 
began operations without a closure plan in place, even though the contract 
required him to have one.

Willett testified that then-District 3 Supervisor Jay Howe told him to go 
ahead. He stated under oath he understood Howe was only one member of the 
board, and he had no authority to waive any portion of the contract.

"He himself admitted he broke the contract," Scott said.

Scott said she also did not understand the dollar amount of the damages. She 
said the jury heard testimony that one of Willett's two biggest customers, 
the Orange County Sanitation District, had decided on its own to stop 
sending sludge to the Yakima facility early in 2003. She said the district 
board gave Willett a list of items he needed to do for them to start sending 
Yakima their sludge again, but he didn't do any of them.

Scott praised Staton, saying she did a great job.

District 1 Supervisor Gene Fisher was also surprised by the verdict.

"I am speechless," he said. "I cannot imagine how they reached that 
verdict."

Interim County Administrator Donna Hale said she was "sickened" by the 
verdict.

"I cannot believe they voted against us," Hale said. "It's very 
disheartening."

The verdict was a big topic for comments on the Pioneer's website, 
www.parkerpioneer.net. By the weekend, more than 250 comments had been 
posted. Many of these were removed due to violations of the Pioneer's 
policies on comments. Many of those who posted comments blamed the 
supervisors, especially Fisher and District 2 Supervisor Cliff Edey, for the 
verdict. Some wondered how the verdict would affect pay increases for county 
employees.

In September 2005, the county informed Willett of their intention to close 
the facility under a provision of the contract which allowed the county to 
shut it down if an adequate alternative site had not been found after three 
years.

Yakima had filed papers in La Paz County Superior Court asking Judge Michael 
Burke to stop the county from closing the facility as they had not 
diligently pursued an alternative site. Burke rejected the request in 
December 2005, saying the arguments Yakima was presenting would be better 
presented at a trial.

The day after Burke issued his ruling, Yakima filed for bankruptcy.

At the trial, Hallman said the county never pursued any site other than one 
adjacent to the landfill which was held by BLM. Hallman said that, in the 
county's initial contact with BLM in 2002, the county learned the land could 
only be used by a public entity. They were told Yakima, a private company, 
could operate the sludge facility as long as they were under contract with 
the county. When inquiring about the larger site in 2005, Hallman said the 
county presented Yakima as the one seeking the land, not the county. He said 
the county knew BLM would reject the request as this would not be a 
permitted use for the land.

Scott, Fisher and Hale said they expect the verdict will be appealed.


http://www.parkerpioneer.net/articles/2007/09/10/news/parker02.txt