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Aug 31
Aug 31

Is Skiing on Poop Snow Legal?

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After reading this, consider filing a complaint with the ADEQ, it is a process the ADEQ must follow up on. Here is a link to instructions on how to use the data in this document.

 

In May of 2005 I was doing research on the FEIS and how it pertiained to the ADEQ, we thought it might be good to know how snowmaking was made legal. So I followed the paper trail in the FEIS to the actual AZ rules regarding wastewater. The Arizona Administrative Code (AAC) only mentions "snowmaking" once and says it is an allowable direct reuse. There is no mention of skiing or sledding as a direct reuse at all. However, the rules do require any use not directly covered be put through a litmus test to determine if ther is a potential for immersion and ingestion. If the potential for ingestion is present, then the reuse is illegal. I have difficulty seeing how skiing or sledding could be a direct reuse of reclaimed water. If pushed in court it could be construed that it is legal to make snow with reclaimed water, but the rules forbid skiing on (or in) it. Additionally, the documentation presented will show how the ADEQ circumvented the public process to avoid any negative comments on snowmaking with reclaimed waste water. The links below are the document ADEQ sent me as proof of the public process:

ADEQdocs.pdf
ADEQresearch.pdf
letters.pdf

Here is the state laws that are being broken, as well as a brief synopsys of the documents linked above:

Summary: AAC Article 7, Title 18, Chapter 9 clearly prohibits uses that allow the water to be ingested or come in cotact with areas where food is ingested. I do not see that possible to do at this ski area. Additionally, it is stated that reclaimed water cannot mix with stormwater runoff or leave the area allowed for the direct reuse. There is no possible way for the Snowbowl to comply with that point of law.

http://www.azsos.gov/public_services/title_18/18-09.htm
 

Arizona Administrative Code

ARTICLE 7. DIRECT REUSE OF RECLAIMED WATER || TITLE 18. ENVIRONMENTAL QUALITY
 
CHAPTER 9. DEPARTMENT OF ENVIRONMENTAL QUALITY
WATER POLLUTION CONTROL

R18-9-704. General Requirements
F. Irrigating with reclaimed water. A permittee irrigating with reclaimed water shall:
3. Prevent reclaimed water from coming into contact with drinking fountains, water coolers, or eating areas;

G. Prohibited activities.

2. Providing or using reclaimed water for any of the following activities:
b. Direct reuse for swimming, wind surfing, water skiing, or other full-immersion water activity with a potential of ingestion;

3. Misapplying reclaimed water for any of the following reasons:
c. Allowing runoff of reclaimed water or reclaimed water mixed with stormwater from a direct reuse site, except for agricultural return flow that is directed onto an adjacent field or returned to an open water conveyance.

** (from AAC definitions) 36. "Stormwater" means stormwater runoff, snow melt runoff, and surface runoff and drainage.


============================== ===========

R18-9-707. Reclaimed Water Individual Permit Where Industrial Wastewater Influences the Characteristics of Reclaimed Water

B. In addition to the requirements in R18-9-705(B), an application for a Reclaimed Water Individual Permit shall include:

3. If reclaimed water will be used in the processing of any crop or substance that may be used as human or animal food, the information regarding food safety and any potential adverse health effects of this direct reuse.

I will now give a brief synopsis of the timeline of events and then an explanation of what is in the above linked PDF's.


In 1999 the ADEQ started a public process to revise their wastewater rules. There is no law that says the must revisit these standards, but the usually do it every five years. They pulled their 2005-06 revisions from the table because of the Peaks case and currently will not say when they will redo them.

Also in 1999 the Arizona Snowbowl management and ownership was doing their own scoping. They had already met with the USFS, City of Flagstaff, Flagstaff Chamber of Commerce, and various Arizona State level elected officials regarding making snow on the peaks with wastewater. doubtlessly they were told by the city and FS that ADEQ would be the one who would have to make it legal before they could even think of moving forward.

The ADEQ went through their normal (very quiet, but public) rulemaking process. They did scoping and then released a draft of the new rules at the beginning of 2000. During that time they took public comment on the draft rules via letters and three public meetings (Flagstaff, Phoenix, and Tucson). JR Murray, General manager of Snowbowl, attended the Flagstaff Meeting.

JR Murray then had a private meeting (see letters.pdf p.2) with Steve Palowski who was in charge of the wastewater rulemaking process to determine if snowmaking could be made a legal. It looks as though he was told he would need to get various public letters sent to them requesting that snowmaking be added to the new rules as a legal use for reclaimed wastewater. JR Murray sent a form letter to his "friends" and they sent it to ADEQ to make it all look on the up and up.

In June of 2000 ADEQ received about 13 letters from groups like the City of Flagstaff City Manager, The Flagstaff Chamber of Commerce President, Eric Borowski, State Rep John Verkamp, State Senator John Wettaw, Arizona Snowbowl. Many simply used the form letter JR had provided them and some went as far as to document a CC to JR Murray on the letter.

No real public opinion was ever received regarding snowmaking. No part of the public was even informed of the idea since all of this was taking place after the release of the draft rule.

Once the letters were received the ADEQ did it's "research" on snowmaking using reclaimed wastewater. I was able to speak with Charles Graf over the phone once and he explained to me that ADEQ does not have a big budget and usually follows suit with what California's DEQ does. California has legalized snowmaking for commercial uses (see ADEQresearch.pdf p.8). However a call to California showed that it was made legal as a way for pig farmers to deal with their pig poo sludge (see ADEQresearch.pdf p.2-7 for details of how it works), not for skiing purposes. In fact, all the states who have legalized snowmaking have done so solely as a way to deal with raw sewage.

The "research" ADEQ did was to get a copy of California's rule and read a sales website regarding the product "Snowfluent", which is a process and equipment where you could turn your municipal or commercial sewage into snow as a way to deal with it in very cold climates. I went to the website and called the company and they were horrified when I asked if you could ski on the snow that was produced by their equipment. I also called a few of the communities listed in the testimonials on their website and they had all stopped using the process because it was not always cold enough outside to be reliable. Apparently it really only works well in arctic conditions.

Charles Graf, in his e-mail to me, said that other places made snowmaking legal for skiing, but their provided documentation shows no place that actually does this. And in my own research, there is only one other instance where it was even proposed. A ski area in Vermont in the late 70's to early 80's tried to make snow with reclaimed water and lost a court case to do such. Subsequently Vermont, which allows snowmaking with sewer water passed zoning laws to control where you could make sewer water snow. The land must be zoned for such a use. Currently their laws only allow for such activity as long as there are barriers to human contact of any kind in place (based on my phone conversations with Vermont DEQ). Unfortunately I do not have any papers regarding the case. I can't find them.

In January of 2001 the ADEQ sent their final rule to the Governor's Regulatory Review Board for Approval. Legally they have to answer a bunch of questions before a rule can be implemented (see ADEQdocs.pdf p. 8-10). In that document (see ADEQdocs.pdf p. 9) they claim that public comments swayed them to add snowmaking as a reuse of wastewater with no mention that it was only those who had a direct financial interest who commented. The general public was never informed and no tribes were consulted. They also claim that the Final rule is not much different from the Draft (see ADEQdocs.pdf p. 10), though we can see how devastating it turned out to be.

The rule successfully passed the review board and the public trust was breached. No real research was ever done to see if this was a healthy use for our communities. The only ones with a say in the process were the players in the game. It was not until after this was quietly accomplished did the USFS start it's scoping on the project. The USFS is much more closely watched and they are required to notify tribes about projects and this project immediately created an uproar.

The USFS relies heavily on the fact that ADEQ made wastewater snowmaking a legal use and they "assume" that all of the necessary health research was done. If you read the three pdf's and the email correspondences you can see that this was not done. In fact the entire legally mandated public process regarding wastewater usage rule-making was circumvented and hidden from the Governors Review Board. All of this was done behind closed doors with direction from the civil servants involved in the process on how to make it look on the up and up. I believe that the provided documentation proves this claim.


WHAT IS CONTAINED IN THE ATTACHMENTS:

email_documentation.doc
1. My email request to ADEQ asking for documents and an explanation
2. The explanation I received from Charles Graf, ADEQ Water Quality Division Deputy Director
3. My response to them
***Note: I never received any further emails

ADEQdocs.pdf
This pdf contains all of the Law related documents I received from my FOIA (state level version) request:
(p. 1) A scan of a receipt from Charles Graf that was with the documents he mailed me.
(p. 2-4) Scan of the cover page of the ADEQ Draft rule released in May 2000 and scan of Table in Appendix A that shows the legally allowed applications of reclaimed wastewter. Snowmaking is not included.
(p. 5-7) Scan of the "Concise Explanation of Changes" from the Draft Rule to the Final Rule.
(p. 8-10) Memorandum filed with the Final Rule to the Governor's review board answering legally mandated questions.


ADEQresearch.pdf
This contains the "exhaustive" 7 pages of research I received from my FOIA (state level version) request that ADEQ did when determining the snowmaking rule:
(p. 1) A scan of a receipt from Charles Graf that was with the documents he mailed me.
(p. 2) A scan of a website page that summarizes snowmaking as a wastewater treatment option
(p. 3-5) A scan of a web-based brochure for "Snowfluent"
(p. 6-7) A scan of a press release that was faxed to ADEQ about "Snowfluent"
(p. 8) A scan of a website page that lists California's reclaimed wastewater uses, it lists snowmaking as a "commercial usage" but it does not explain what "commercial" means and if "recreational" is possibly another category. The poor print quality of this document is how I received it.


letters.pdf
This pdf contains all the letters ADEQ says it received as public comments. I received them from my FOIA (state level version) request:
(p. 1) A scan of a receipt from Charles Graf that was with the documents he mailed me.
(p. 2) Handwritten letter from JR Murray, GM of Snowbowl, thanking Steve Palowski of ADEQ for their "meeting"
(p. 3-4) Comment Letter from AZ Snowbowl signed by JR Murray
(p. 5-6) Comment Letter from Eric Borowsky, Part Owner of Snowbowl, but on "Sun West Holdings" Letterhead
(p. 7-8) Comment Letter from Norm Johnson, Coldwell Bankers
(p. 9) Comment Letter from State Rep John Verkamp
(p. 10) Comment Letter from State Senator John Wettaw (note cc to JR Murray)
(p. 11) Comment Letter from David Maurer, Flagstaff Chamber of Commerce President
(p. 12-13) Comment Letter from City of Flagstaff City Manager Dave Wilcox (note cc to JR Murray)
(p. 14) Comment Letter from Brian Beamer, Flagstaff Ski Club
(p. 15) Comment letter from Gary Vallen Hospitality Assoc. (note cc to JR Murray)
(p. 16-17) Comment Letter from Greater Flagstaff Economic Council
(p. 18) Comment Letter from Grand Canyon State Games Executive Director
(p. 19) Comment Letter from Mountain Sports Retail Store (They sell lift tickets)
(p. 20-21) Comment from National Ski Area Associations
(p. 22) Comment Letter from Wells Fargo
(p. 23) Comment Letter from Williams Ski Area

Written by Rudy Preston