STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY
In the Matter of Remedial Action by:

AGREED ORDER

The Port of Seattle

No. DE 7321

TO:

Port of Seattle
Attention: Mr. Tay Yoshitani
P.O. Box 1209
Seattle, Washington 98111
TABLE OF CONTENTS

I.
INTRODUCTION .................................................................................................................3
II.
JURISDICTION ....................................................................................................................3
III. PARTIES BOUND................................................................................................................3
IV. DEFINITIONS ......................................................................................................................3
V.
FINDINGS OF FACT ...........................................................................................................5
VI. ECOLOGY DETERMINATIONS........................................................................................9
VII. WORK TO BE PERFORMED ...........................................................................................10
VIII. TERMS AND CONDITIONS OF ORDER ........................................................................19
A. Public Notice................................................................................................................19
B. Remedial Action Costs ................................................................................................19
C. Implementation of Remedial Action ............................................................................20
D. Designated Project Coordinators .................................................................................21
E. Performance .................................................................................................................21
F. Access ..........................................................................................................................22
G. Sampling, Data Submittal, and Availability ................................................................23
H. Public Participation ......................................................................................................24
I. Retention of Records....................................................................................................25
J. Resolution of Disputes .................................................................................................25
K. Extension of Schedule..................................................................................................26
L. Amendment of Order ...................................................................................................28
M. Endangerment ..............................................................................................................28
N. Reservation of Rights ...................................................................................................29
O. Transfer of Interest in Property ....................................................................................29
P. Compliance with Applicable Laws ..............................................................................30
Q. Financial Assurance .....................................................................................................31
R. Indemnification ............................................................................................................35
IX. SATISFACTION OF ORDER ............................................................................................36
X.
TERMINATION OF 1998 AGREED ORDER ..................................................................36
XI. ENFORCEMENT ...............................................................................................................36

Agreed Order No. DE 7321
Page 2 of 37

EXHIBITS
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:

Port of Seattle Terminal 91 Facility
Contamination Contingency Work Plan
Releases Requiring Corrective Action (Terminal 91 Site - Known
Discrete Units of Contamination)
Public Participation Plan
List of Reports Since 1998 Agreed Order

Agreed Order No. DE 7321
Page 3 of 37

I.

INTRODUCTION

The mutual objective of the State of Washington, Department of Ecology (Ecology) and
the Port of Seattle (Port) under this Agreed Order (Order) is to provide for remedial action at a
facility where there has been a release or threatened release of hazardous substances. This Order
requires the Port to complete the work required by the 1998 Order, with modifications to reflect
circumstances that have changed since the 1998 Order. Ecology believes the actions required by
this Order are in the public interest.
II.

JURISDICTION

This Agreed Order is issued pursuant to the authority of the Model Toxics Control Act
(MTCA), RCW 70.105D.050(1). This Order also satisfies the requirements of WAC 173-303646 through -64630.
III.

PARTIES BOUND

This Agreed Order shall apply to and be binding upon the Parties to this Order, their
successors and assigns. The undersigned representative of each Party hereby certifies that he or
she is fully authorized to enter into this Order and to execute and legally bind such Party to
comply with the Order. The Port agrees to undertake all actions required by the terms and
conditions of this Order. No change in ownership or corporate status shall alter the Port’s
responsibility under this Order. The Port shall provide a copy of this Order to all agents,
contractors, and subcontractors retained to perform work required by this Order, and shall ensure
that all work undertaken by such agents, contractors, and subcontractors complies with this
Order.
IV.

DEFINITIONS

Unless otherwise specified herein, the definitions set forth in Chapter 70.105D RCW and
Chapter 173-340 WAC shall control the meanings of the terms used in this Order.

Agreed Order No. DE 7321
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1.

Site: The Site is referred to as the Port of Seattle, Terminal 91. The Site includes

areas where releases of Hazardous Substances originating from the Terminal 91 Facility have
come to be located, and is generally located at 2001 West Garfield Street, Seattle, Washington.
The Site is defined by the extent of contamination caused by the releases of Hazardous
Substances and may include both submerged lands and uplands. The Site, as currently known to
exist, is depicted in Exhibit A to this Order. The Site is comprised of three separate and distinct
areas: (1) the Tank Farm Affected Area; (2) the Submerged Lands Area; and (3) the Upland
Area. The Site constitutes a Facility under RCW 70.105D.020(5).
2.

Parties: Refers to the State of Washington, Department of Ecology, and the Port

of Seattle.
3.

Port: Refers to the Port of Seattle.

4.

Discrete Unit means an area affected by the release of Hazardous Substances at

Terminal 91, other than releases within the Tank Farm Affected Area.
5.

Permit means dangerous waste facility permit WAD000812917, issued to the Port

pursuant to 70.105 RCW, and any successor permit.
6.

Agreed Order or Order: Refers to this Order and each of the exhibits to the Order.

All exhibits are integral and enforceable parts of this Order. The terms “Agreed Order” or
“Order” shall include all exhibits to the Order.
7.

Tank Farm Lease Parcel consists of approximately 4 acres within Terminal 91

shown in Exhibit A. The Tank Farm Lease Parcel formerly was the site of a tank farm,
demolished in 2005, which had for a time operated as a Dangerous Waste facility.
8.

Tank Farm Affected Area comprises the Tank Farm Lease Parcel and any areas

where Hazardous Substances originating from the Tank Farm Lease Parcel have come to be
located. The term “Tank Farm Affected Area” has the same meaning that the term “Site” was
given under the 1998 Order. The Tank Farm Affected Area, as believed to be located as of the
date of this Order, is depicted generally in Exhibit A.

Agreed Order No. DE 7321
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9.

Terminal 91 Facility means the real property owned by the Port of Seattle

encompassing approximately 216 acres and located at 2001 West Garfield Street, Seattle,
Washington as depicted on Exhibit A.
10.

1998 Order means Agreed Order No. DE 98HW-N108, entered in 1998 by

Ecology; the Port of Seattle (the “Port”); Burlington Environmental Inc., then a wholly owned
subsidiary of Philip Services Corp. (“Philip”); and Pacific Northern Oil Corporation (“PNO”).
11.

Hazardous Substances has the meaning provided by RCW 70.105D.020(10).

12.

Dangerous Waste means any solid waste designated under the procedures of

WAC 173-303-070 through 173-303-100 as dangerous, extremely hazardous, or mixed waste.
Dangerous wastes are hazardous substances under RCW 70.105D.020(10).
13.

Submerged Lands Area means that part of the Terminal 91 Facility covered by

marine waters, generally located on the southern portion of the Terminal 91 Facility and adjacent
to Piers 90 and 91, as generally depicted in Exhibit A.
14.

Upland Area means that part of the Terminal 91 Facility other than the

Submerged Lands Area and the Tank Farm Affected Area, as generally depicted in Exhibit A.
V.

FINDINGS OF FACT

Ecology makes the following findings of fact, without any express or implied admissions
of such facts by the Port:
1.

The Site is located on the northern side of Elliott Bay generally at 2001 West

Garfield Street, Seattle, Washington. The Site is located on Smith Cove and the Smith Cove
Waterway on the Elliott Bay waterfront. The Site location is generally depicted in the diagram
attached to this Agreed Order as Exhibit A.
2.

The Site is listed on the Department of Ecology’s Hazardous Sites List as “Seattle

Port Terminal 91”, under Facility Site ID No. 24768 with a hazard ranking of 1, and as “Seattle
Port Terminal 91 Tank Farm”, under Facility Site ID No. 2300 with a hazard ranking of 1.
3.

The Port is the current owner of the entire Terminal 91 Facility which covers

approximately 216 acres, of which the Tank Farm Lease Parcel covers approximately 4 acres.

Agreed Order No. DE 7321
Page 6 of 37

4.

A tank farm was built on the Tank Farm Lease Parcel in or about 1926. The Tank

Farm Lease Parcel was operated by various oil companies until December 1941 when the United
States Navy took possession of the entire Terminal 91 Facility through condemnation. In about
1972, the Navy declared the Terminal 91 Facility as surplus. The Port began managing the
Terminal 91 Facility, and in 1976 the Port acquired the Terminal 91 Facility. The Terminal 91
Facility remains under the Port’s management and ownership at the present time. The Port
removed all of the tanks and a number of buildings at the Tank Farm Lease Parcel as part of a
MTCA independent interim remedial action reported in October 2005.
5.

Burlington Environmental Inc. and its predecessors and successors will herein be

referred to as “Philip.” Philip operated the Tank Farm Lease Parcel from about June 1971, when
it began leasing the Tank Farm Lease Parcel from the Port, through September 1995 when its
occupancy ended. Philip operated the Tank Farm Lease Parcel as a regulated dangerous waste
management facility on or after November 19, 1980, the date which subjects facilities to federal
RCRA permitting requirements under 40 CFR 264 and Chapter 173-303 WAC, Washington’s
Dangerous Waste Regulations.
6.

On November 14, 1980, EPA was notified of dangerous waste management

activities on the Terminal 91 Lease Parcel when the Part A form of the RCRA permit application
was filed. Pursuant to the November 14, 1980, notification, EPA issued identification number
WAD000812917 for this facility.

EPA received a Part B portion of the RCRA permit

application to obtain a final status permit for a dangerous waste treatment, storage and disposal
facility on November 8, 1988. There were numerous revisions to the draft Part B application,
but the Final Status Facility Permit was issued July 22, 1992 with an effective date of August 22,
1992. The Port was named as a permitee since the Port owns the property. Active dangerous
waste operations ceased at the permitted Tank Farm Lease Parcel in September 1995, and
Ecology approved the above-ground closure work in 2003.
7.

Hazardous Substances have been released into the environment at this Site.

Hazardous Substances have reportedly been detected in either soil or groundwater at the Site

Agreed Order No. DE 7321
Page 7 of 37

including, but not limited to, dichlorodifluoromethane, vinyl chloride, chloroethane, acetone,
carbon disulfide, methylene chloride, 1,1-DCA, cis 1,2-DCE, 2-butanone, chloroform,
1,1,1-TCA,

carbon

tetrachloride,

1,2-DCA,

benzene,

TCE,

1,2-dichloropropane,

2-chloroethylvinylether, 4-methyl-2-pentanone, toluene, 1,1,2-trichloroethane, PCE, 2-hexanone,
chlorobenzene,

ethylbenzene,

1,1,2,2-tetrachloroethane,

m-xylene,

p-xylene,

1,3-dichlorobenzene,

o-xylene,

styrene,

1,4-dichlorobenzene,

bromoform,

1,2-dichlorobenzene,

naphthalene, total petroleum hydrocarbons (“TPH”) as gasoline and diesel, light nonaqueousphase

liquid

(“LNAPL”)

of

TPH

constituents,

polychlorinated

biphenyls

(PCBs),

trichlorofluoromethane, N-nitroso-di-n-propylamine, isophorone, 2,4-dimethylphenol, 4-chloro3-methyl-phenol, 2-methyl naphthalene, 2-nitroaniline, dimethylphthalate, 2,6-dinitrotoluene,
1,1,2-trichloro-1,2,2
dinitrophenol,

trifluoroethane,

dibenzofuran,

bis

(2-chloroethoxy)methane,

4-nitrophenol,

fluorene,

acenaphthene,

4-chlorophenyl

phenyl

2,4ether,

diethylphthalate, N-nitrosodiphenylamine, pentachlorophenol, phenanthrene, anthracene, di-nbutylphthalate, fluoranthene, pyrene, chrysene, bis(2-ethylhexyl)phthalate, di-n-octylphthalate,
benzo(k)fluoranthene, benzo(b)fluoranthene, 4-nitroaniline, azobenzene, 4-bromophenyl phenyl
ether, benzo(a)pyrene, total chromium, total mercury, total selenium, total lead, dissolved lead,
and dissolved zinc.
8.

The detection of the above listed Hazardous Substances is documented in reports,

including but not limited to the following:
Reports referenced in 1998 Agreed Order:
A.

Sweet Edwards/EMCON, December 1987, Property Transfer Assessment,
Chemical Processors, Inc., Pier 91 Facility, Seattle, Washington;

B.

USEPA\Jacob Engineering Group Inc., April 28 1988, Draft Report,
RCRA Facility Assessment, Chemical Processors, Inc., Pier 91, Seattle,
Washington;

Agreed Order No. DE 7321
Page 8 of 37

C.

Sweet

Edwards/EMCON,

May

1988,

Phase

1

Hydrogeological

Investigation, Chemical Processors, Inc., Pier 91 Facility, Seattle,
Washington;
D.

Sweet Edwards/EMCON, April 24, 1989, Hydrogeological Investigation,
Pier 91 Facility, Seattle, Washington;

E.

Burlington Environmental Inc., June 15, 1994, Draft Interim Measures
Workplan, Burlington Environmental, Inc., Pier 91 Facility;

F.

USEPA/PRC Environmental Management, Inc., November, 4, 1994, Final
RCRA Facility Assessment, Port of Seattle/Burlington Environmental Inc.
Terminal 91 Facility, Seattle, Washington;

G.

Burlington

Environmental

Inc.,

February

1995,

RCRA

Facility

Investigation Draft Report, Burlington Environmental Inc., Pier 91
Facility, Seattle, Washington; and
H.

Bimonthly Progress Reports submitted under the requirements of the EPA
3008(h) Agreed Order for RFI activities.

Reports since 1998 Agreed Order (see Exhibit E for list of reports).
9.

In 1998, Ecology entered Agreed Order No. DE 98HW-N108 (the “1998 Order”)

with the Port, Philip, and PNO (the “PLPs”).
10.

In December, 2003, the State of Washington resolved certain claims against

Philip relating to the cleanup of the Site in a consent decree filed in United States Bankruptcy
Court, In re Philip Services Corporation, Bankr. S. D. Tex. (No. 03-37718-H2-11).
11.

The Port has performed various remedial actions with respect to various releases

at the Terminal 91 Facility pursuant to its registration in Ecology’s Voluntary Cleanup Program
under the application submitted March 10, 1999. Such remedial actions were performed to
address corrective action requirements imposed by the Permit, and have generally been reported
to Ecology as part of the cleanup of the Upland Area.

Agreed Order No. DE 7321
Page 9 of 37

VI.
1.

ECOLOGY DETERMINATIONS

The Port is an “owner or operator” as defined in RCW 70.105D.020(17), of a

“facility” as defined in RCW 70.105D.020(5). A Final Status Dangerous Waste Permit was
issued July 22, 1992 to Philip as operator and the Port as owner of the property. Under WAC
173-303-64630(3) the Department of Ecology is requiring the owner of a facility to fulfill the
corrective action responsibilities through this Agreed Order issued pursuant to the Model Toxics
Control Act (MTCA).
2.

Based upon all factors known to Ecology, a “release” or “threatened release” of

“Hazardous Substance(s)” as defined in RCW 70.105D.020(25) and RCW 70.105D.020(10),
respectively, has occurred at the Site.
3.

Based upon credible evidence, Ecology issued a PLP status letter to the Port dated

July 3, 1996, pursuant to RCW 70.105D.040, -.020(16) and WAC 173-340-500. After providing
for notice and opportunity for comment, reviewing any comments submitted, and concluding that
credible evidence supported a finding of potential liability, Ecology issued a determination that
the Port is a PLP under RCW 70.105D.040 and notified the Port of this determination by letter
dated August 15, 1996.
4.

Pursuant to RCW 70.105D.030(1) and -.050(1), Ecology may require PLPs to

investigate or conduct other remedial actions with respect to any release or threatened release of
Hazardous Substances, whenever it believes such action to be in the public interest. Based on
the foregoing facts, Ecology believes the remedial actions required by this Order are in the public
interest.
5.

The remedial actions undertaken by the Port described in Section V.11 are

subsumed under this Order and shall be considered an integral part of the Work to be Performed.
6.

Unless otherwise specified, Ecology will use the definitions and requirements for

allowable financial assurance mechanisms set forth in the current financial assurance rules
covering closure and post-closure in 40 CFR 264.141, 40 CFR 264.142, 40 CFR 264.143, 40
CFR 264.145, 40 CFR 264.151, and WAC 173-303-620 will be the definitions and requirements

Agreed Order No. DE 7321
Page 10 of 37

for allowable financial assurance for corrective action under this Order. Ecology will apply
these definitions and requirements to this corrective action, except that the words “corrective
action” shall be substituted for the words “closure” or “post-closure” in the above listed
regulations as needed to produce this result.
7.

In the absence of final federal regulations governing financial assurance for

corrective action, Ecology’s Financial Assurance Officer will use the following resources as
guidance in implementing the financial assurance provisions of this Order:
a.

The Financial Assurance for Corrective Action Proposed Rule, 51 FR

37853 (October 24, 1986);
b.

The financial assurance provisions of Corrective Action for Releases from

Solid Waste Management Units Advance Notice of Proposed Rulemaking, 61 FR 19432
(May 1, 1996);
c.

The Interim Guidance on Financial Responsibility for Facilities Subject to

RCRA Corrective Action (U.S. EPA, September 30, 2003); or
d.

Any other guidance applicable to financial assurance and corrective action

that may be available at the time.
Ecology intends to use the financial assurance provisions of the Corrective Action for
Solid Waste Management Units at Hazardous Waste Management Facilities, 55 FR 30798
(July 27, 1990), as secondary guidance. Unless otherwise specified herein, where the language
of this Order conflicts with these rules, proposed rules, notices, and guidance documents, the
language of this Order will prevail.
VII.

WORK TO BE PERFORMED

Based on the foregoing Facts and Determinations, it is hereby ordered that the Port
perform or ensure the performance of the following remedial actions and that these actions be
conducted in accordance with Chapter 173-340 WAC (MTCA) unless otherwise specifically
provided for herein.
//

Agreed Order No. DE 7321
Page 11 of 37

A.

Work to Be Performed in the Tank Farm Affected Area
The Port’s obligations in relation to the Tank Farm Affected Area are to complete work

on an RI/FS and produce a draft Cleanup Action Plan (“CAP”), as contemplated in the 1998
Order. The specific work to be performed includes the following:
1.

The Port shall continue the groundwater monitoring program currently being

performed as required under the terms of the 1998 Order as modified by the following:
a.

Letters from Roth Consulting to Ecology dated September 17, 1999,

October 1, 2002, and February 25, 2009, and Ecology’s approval letters dated
October 1, 1999, October 15, 1999 (which included a correction to the October 1,
1999 letter), November 7, 2002, and February 27, 2009;
b.

A letter from Roth Consulting to Ecology dated September 10, 2003 with

respect to sampling some additional potential background wells, and approved by
Ecology in an e-mail from Galen Tritt to Susan Roth on September 25, 2003;
c.

The Final Ground Water Sampling and Analysis Plan (SAP) for the Site

prepared by Philip in June 2003 and approved by Ecology in a letter dated August
22, 2003 (the quality assurance protection plan found in Appendix of this 2003
SAP has been and will continue to be followed by the Port);
d.

A letter from Roth Consulting to Ecology dated December 13, 2004

requesting approval to add three new monitoring wells (CP_GP08 through
CP_GP10) and Ecology’s approval letter dated December 15, 2004;
e.

A letter from Roth Consulting dated March 4, 2005 with an attached

memo from PIONEER Technologies Corporation proposing to discontinue
ground water sampling at selected monitoring wells beginning with the March
2005 event, and Ecology’s approval letter dated April 26, 2005;
f.

The Final Monitored Natural Attenuation Evaluation Work Plan by PES

Environmental dated July 29, 2005 and approved by Ecology in a letter dated
October 21, 2005;

Agreed Order No. DE 7321
Page 12 of 37

g.

A letter from Roth Consulting to Ecology re: Request to Move Seven

Wells to Semiannual Ground Water Monitoring Program, Terminal 91 Tank Farm
Site, Agreed Order No. DE 98HW-N108, May 17, 2007;
h.

A letter from Ecology to Roth Consulting re: Request to Move Seven

Wells into the Semiannual Groundwater Monitoring Program, Terminal 91 Tank
Farm Site Agreed Order No. DE 98HW-N108, May 24, 2007;
i.

A letter from Roth Consulting to Ecology re: Proposal for Modification of

Ground Water Monitoring Program, Terminal 91 Tank Farm Site, Agreed Order
No. DE 98HW-N108, first transmittal December 2, 2008 and final transmittal
February 24, 2009; and
j.

A letter from Ecology to Roth Consulting re: Proposal for Modification of

Ground Water Monitoring Program, Terminal 91 Tank Farm Site, Agreed Order
No. DE 98HW-N108, February 27, 2009.
2.

Continue to implement the Final Feasibility Study (“FS”) Work Plan that was

submitted to Ecology on August 26, 2005 and approved by Ecology in a letter dated
September 7, 2005, as supplemented by further work approved by Ecology.
3.

The Port has submitted to Ecology-NWRO a final draft FS. This draft will be put

out for a 45 day public comment period. Ecology may request changes based on public
comments it receives.
4.

After Ecology review and approval of the final FS report, and if required by

Ecology, the Port shall submit a draft cleanup action plan (“DCAP”) addressing the Tank
Farm Affected Area to Ecology-NWRO within ninety (90) days of receipt of formal
notification of such requirement by letter. The notification shall identify the preliminary
cleanup alternative chosen by Ecology. The DCAP shall meet the requirements of WAC
173-340-360, -400(1) through (9), -410, as well as WAC 173-303-646.

Agreed Order No. DE 7321
Page 13 of 37

5.

The performance of any work described in any DCAP required by Ecology shall

be the subject of an amendment to the Agreed Order or a new Agreed Order or a Consent
Decree.
6.

The Port shall submit status reports to Ecology-NWRO quarterly, continuing the

schedule that was required by the 1998 Order (i.e., on or before January 20, April 20,
July 20, and October 20 of each year), and continuing until all of the requirements of this
Order are completed to Ecology’s satisfaction. The submittal shall be due on the 20th
day of the month following the three-month activity period. The Port shall include the
following in each status report, with respect to the Tank Farm Affected Area:
a.

All work conducted pursuant to this Agreed Order during the last three

month period;
b.

Occurrence of any problems, how problems were rectified, deviations

from the workplans and an explanation of all deviations;
c.

Projected work to occur in the upcoming three months;

d.

Summaries of significant findings, changes in personnel, summaries of

significant contacts with all federal, state, local community, and public interest
groups;
e.

Any groundwater monitoring program laboratory analyses, not separately

reported, (as copies of the original laboratory reporting data sheets, and in
tabulated data format) for which quality assurance procedures are completed
during the three month period;
f.

All field measurements from any such groundwater monitoring events;

g.

Tabulations of groundwater data from such events showing specific

groundwater

monitoring well, sample collection date,

and constituent

concentration;
h.

Groundwater contour maps for the shallow aquifer for such monitoring

events; and

Agreed Order No. DE 7321
Page 14 of 37

i.

An LNAPL thickness map for any such monitoring events, using results of

Site baildown tests as appropriate to correct for apparent LNAPL thickness
observed in wells.
7.

The Port shall annually submit an analysis report covering groundwater data from

the Tank Farm Affected Area to Ecology NWRO. The annual report for the preceding
calendar year will be due to Ecology each year on February 20. The annual groundwater
data analysis report shall at a minimum:
a.

Present analytical data for groundwater monitoring wells using tables (for

all data and summary) and graphs (for representative groundwater monitoring
wells and chemical constituents);
b.

Construct hydrographs for representative groundwater monitoring well

showing date of measurement and groundwater elevation;
c.

Graph monthly precipitation data from the Site or from the closest rain

gauge monitoring station to the Site; and
d.

Evaluate the seasonal effects on the groundwater data, contaminant plume

characteristics, impacts of Interim Measures on the LNAPL, constituents that are
migrating from the Site, an estimate of the rate of transport, and any revisions to
the conceptual model.
8.

If data gaps exist, then either Ecology or the Port may propose additional work to

fill the data gaps subject to Section VIII.L of this Order. If the parties cannot agree on
the need for additional work to fill data gaps, this would trigger the conflict resolution
protocol described under Section VIII. J.
9.

The Port may conduct remedial actions with respect to unanticipated discoveries

encountered within the Tank Farm Affected Area in compliance with the Contamination
Contingency Plan (Exhibit B).
//
//

Agreed Order No. DE 7321
Page 15 of 37

B.

Work to Be Performed in the Submerged Lands Area
To the extent that Hazardous Substances are discovered in the Submerged Lands Area,

the Parties agree that, based on current understanding, it is not practicable at this time to address
any such contamination. Additional information would be required to do so, for example,
identifying and addressing sources potentially contributing to such contamination, including
sources such as stormwater that originated from other industrial properties in the area
surrounding the Terminal 91 Facility. Accordingly, any remedial action that might be necessary
in the Submerged Lands Area is deferred for the time being.

The necessity for, and the

practicability of, remedial action in the Submerged Lands Area will be reevaluated at the time a
CAP is issued for the Tank Farm Affected Area.
C.

Work to Be Performed In the Uplands Area
1.

For Known Discrete Units of Contamination:

For releases of Hazardous

Substances in the Uplands Area of which the Port is aware as of the effective date of this
Order, the Port has the obligations identified below. These Known Discrete Units of
contamination are identified and listed in Exhibit C hereto.
a.

For Known Discrete Unit A.1 (see Exhibit C), Ecology finds that this area

does not pose an immediate threat to human health and the environment.
Accordingly, remedial action for this area shall be done in conjunction with the
Port’s redevelopment in this area. If the Port has not initiated redevelopment and
remedial actions in this area within ten (10) years of the effective date of this
Order, the Port shall conduct the remedial actions regardless of the status of the
Port’s redevelopment. Such work shall be conducted, reported and evaluated as
described in Subsection VII. C.1.b.
b.

For Known Discrete Units B-18, B-22, and B.28 through B.37 (see

Exhibit C), the Port shall:
1)

Submit a work plan (or other appropriate documentation needed

for completion) to Ecology for addressing the contamination within a time

Agreed Order No. DE 7321
Page 16 of 37

frame agreed to by Ecology. Any such work plan, once approved in
writing by Ecology, becomes an integral and enforceable part of this
Order. The scope and detail of any such work plan shall be commensurate
with the scope and complexity of the appropriate cleanup action
necessary, and should be submitted for review, and when appropriate,
approval by Ecology.
2)

Within ninety (90) days of completing the approved remedial

action, the Port shall submit a written report describing the actions taken.
3)

Ecology shall evaluate such remedial actions to determine whether

they meet the substantive requirements of Chapter 173-340 WAC and
whether Ecology believes that further remedial action is necessary.
2.

For Newly Discovered Discrete Units of Contamination in the Uplands Area:
a.

Section VIII.L requires formal amendment of this Order in the event of

“substantial” changes to the work to be performed, with “minor” changes to be
documented without formal amendment. For purposes of releases under this
subsection VII.C.2, additional work to address them shall be considered
“substantial” if the releases are of a kind that would generally be addressed under
an agreed order in their own right. Based on previous investigations and site
history at the Terminal 91 Facility, non-exclusive examples of minor releases
and/or remedial actions in the Upland include:
1)

releases subject to the Contamination Contingency Plan;

2)

closure, site assessment, and remediation of releases from USTs

used for petroleum storage (subject to language in example 5);
3)

releases affecting soil but not groundwater;

4)

routine disposal of contaminated soil excavated as part of

construction activities;

Agreed Order No. DE 7321
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5)

releases affecting groundwater in which the only hazardous

substances over cleanup levels are petroleum-related and the extent of the
contamination plume does not appear to be extensive;
6)

removal of accumulated petroleum product from excavation water

in cases where construction excavations extend below the water table;
7)

installation and operation of product recovery/product monitoring

wells or other structures such as product recovery/product monitoring
vaults;
8)

application of ORC

or other commonly used remedial products

to ground water to assist in degrading petroleum constituents; and
9)

cleaning,

decommissioning

in

place,

and/or

removal

of

underground fuel pipelines.
b.

For contamination discovered in the context of Port construction activities

that is a reportable release under WAC 173-340-300, the Port will follow the
Contamination Contingency Work Plan, attached as Exhibit B hereto.

The

Contamination Contingency Plan is an integral and enforceable part of this Order.
1)

Within ninety (90) days of completing a remedial action under the

Contamination Contingency Plan, the Port shall submit a written report
describing the actions taken.
2)

Ecology shall evaluate such remedial actions to determine whether

they meet the substantive requirements of Chapter 173-340 WAC and
whether Ecology believes that further remedial action is necessary.
3)

If a remedial action the Port conducts under the Contamination

Contingency Plan is an interim action as defined in WAC 173-340-430,
any final cleanup action for the contamination addressed under the interim
action shall be conducted under the procedures in either subsection
VII.C.1.a or VII.C.1.b. Ecology and the Port shall consult to determine

Agreed Order No. DE 7321
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which subsection’s procedures the cleanup action will proceed under, and
shall update Exhibit C to include the newly-discovered Discrete Units in
accordance with Section VIII.L, through either the informal or formal
process. In the event the Port and Ecology disagree, Ecology shall make
the final decision, subject to dispute resolution under Section VIII. J.
c.

For newly-discovered Discrete Units of contamination the Port finds

outside the context of construction, the Port shall address the newly-discovered
contamination under the procedures in either subsection VII. C 1. a or VII. C 1. b.
Ecology and the Port shall consult to determine which subsection’s procedures the
cleanup action will proceed under, and shall update Exhibit C to include the
newly-discovered Discrete Units in accordance with Section VIII.L, through
either the informal or formal process. In the event the Port and Ecology disagree,
Ecology shall make the final decision, subject to dispute resolution under Section
VIII. J.
d.

The Port’s obligations to address newly-discovered contamination

pursuant to Subsection VII. C 2 are subject to relief if the Port demonstrates that
the contamination is the result of a plume for which the Port would not be
considered an “owner” pursuant to RCW 70.105D.020(17)(b)(iv) (or similar
provision granting relief for the owner of land affected by a migrating plume of
Hazardous Substances).
D.

General Requirements Applicable to All Work Performed Under This Section
The Port shall follow the reporting guidelines in WAC 173-340-840 for all parts of this

Order unless otherwise agreed to by both Ecology and the Port in writing. All data generated
pursuant to this Order shall be submitted to Ecology-NWRO, including all outlier and duplicate
data. In addition, all sampling data generated pursuant to this Order shall be submitted to
Ecology-NWRO as copies of the original reported laboratory data sheets, in tabulated data
format and in an electronic format approved by Ecology for all referenced environmental media.

Agreed Order No. DE 7321
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Laboratory detection limits and practical quantitation limits shall be reported for each constituent
concentration detected.
E.

Deliverables
Once approved in writing by Ecology, all deliverables the Port submits to Ecology under

this Order are incorporated by reference and become enforceable parts of this Order, as if fully
set forth herein.

During the performance of work under an approved deliverable, field

modifications to the submittal may be agreed to orally by the Project Coordinators. In such case,
the Port shall submit a description of the field modification to Ecology’s Project Coordinator in
writing within seven (7) days after the oral agreement, and Ecology’s Project Coordinator shall
provide written confirmation of the agreed modification. Such field modifications would be
subject to VIII.L’s terms concerning amendments to the Order.
F.

Remedy for Insufficient Progress
If, at any time after the first exchange of comments on drafts, Ecology determines that

insufficient progress is being made in the preparation of any of the deliverables required by this
section, Ecology may, after providing written notice and a reasonable opportunity to cure,
complete and issue the final deliverable.
VIII. TERMS AND CONDITIONS OF ORDER
A.

Public Notice
RCW 70.105D.030(2)(a) and WAC 173-340-600(11)(c) require that, at a minimum, this

Order be subject to concurrent public notice. Ecology shall be responsible for providing such
public notice and reserves the right to modify or withdraw any provisions of this Order should
public comment disclose facts or considerations which indicate to Ecology that this Order is
inadequate or improper in any respect.
B.

Remedial Action Costs
The Port shall pay to Ecology costs incurred by Ecology pursuant to this Order and

consistent with WAC 173-340-550(2). These costs shall include work performed by Ecology or
its contractors for, or on, the Site under Chapter 70.105D RCW, including remedial actions and

Agreed Order No. DE 7321
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Order preparation, negotiation, oversight, and administration. These costs shall include work
performed both prior to and subsequent to the issuance of this Order. Ecology’s costs shall
include costs of direct activities and support costs of direct activities as defined in WAC 173340-550(2). The Port shall pay the required amount within ninety (90) days of receiving from
Ecology an itemized statement of costs that includes a summary of costs incurred, an
identification of involved staff, and the amount of time spent by involved staff members on the
project. A general statement of work performed will be provided upon request. Itemized
statements shall be prepared quarterly.

Pursuant to WAC 173-340-550(4), failure to pay

Ecology's costs within ninety (90) days of receipt of the itemized statement of costs will result in
interest charges at the rate of twelve percent (12%) per annum, compounded monthly.
Pursuant to RCW 70.105D.055, Ecology has authority to recover unreimbursed remedial
action costs by filing a lien against real property subject to the remedial actions.
C.

Implementation of Remedial Action
If Ecology determines that the Port has failed without good cause to implement the

remedial actions, in whole or in part, Ecology may, after notice to the Port, perform any or all
remedial actions required by this Order that remain incomplete. If Ecology performs all or
portions of such remedial actions because of the Port’s failure to comply with its obligations
under this Order, the Port shall reimburse Ecology for the costs of doing such work in
accordance with Section VIII. B. (Remedial Action Costs), provided that the Port is not obligated
under this Section to reimburse Ecology for costs incurred for work inconsistent with or beyond
the scope of this Order.
Except where necessary to abate an emergency situation, the Port shall not perform any
remedial actions at the Site outside those remedial actions required by this Order, unless Ecology
concurs, in writing, with such additional remedial actions. Ecology concurs with remedial
actions done in compliance with the Contamination Contingency Plan (Exhibit B).
//
//

Agreed Order No. DE 7321
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D.

Designated Project Coordinators
The project coordinator for Ecology is:
Name:
Address:
Phone:
FAX:
E-mail:

Galen H. Tritt
Department of Ecology-BFO
1440 10th Street, Suite 102
Bellingham, WA 98225
(360) 715-5200
(360) 715-5225
gtri461@ecy.wa.gov

The project coordinator for the Port is:
Name:
Address:
Phone:
FAX:
E-mail:

Susan Roth
Roth Consulting
6236 27th Avenue N.E.
Seattle, WA 98115-7114
(206) 617-2176
(206) 523-3155
susanjroth@comcast.net

Each project coordinator shall be responsible for overseeing the implementation of this
Order. Ecology’s project coordinator will be Ecology’s designated representative for the Site.
To the maximum extent possible, communications between Ecology and the Port, and all
documents, including reports, approvals, and other correspondence concerning the activities
performed pursuant to the terms and conditions of this Order shall be directed through the project
coordinators. The project coordinators may designate, in writing, working level staff contacts for
all or portions of the implementation of the work to be performed required by this Order.
Any party may change its respective project coordinator. Written notification shall be
given to the other party at least ten (10) calendar days prior to the change.
E.

Performance
This Order’s terms regarding persons performing “work required by this Order” apply

only to persons who expressly undertake responsibility for performing such work, and not to
Agents/Contractors/Subcontractors of the Port who may take incidental actions subject to the
Order as a result of addressing contamination encountered during construction or utility work.
1.

The Port shall provide a copy of this Order to all agents, contractors, and

subcontractors retained to perform work required by this Order, and shall ensure that all

Agreed Order No. DE 7321
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work undertaken by such agents, contractors, and subcontractors complies with this
Order.
2.

All geologic and hydrogeologic work performed pursuant to this Order

shall be under the supervision and direction of a geologist licensed in the State of
Washington or under the direct supervision of an engineer registered in the State of
Washington, except as otherwise provided for by Chapters 18.220 and 18.43 RCW.
3.

All engineering work performed pursuant to this Order shall be under the

direct supervision of a professional engineer registered in the State of Washington, except
as otherwise provided for by RCW 18.43.130.
4.

All construction work performed pursuant to this Order shall be under the

direct supervision of a professional engineer or a qualified technician under the direct
supervision of a professional engineer. The professional engineer must be registered in
the State of Washington, except as otherwise provided for by RCW 18.43.130.
5.

Any documents submitted containing geologic, hydrologic or engineering

work shall be under the seal of an appropriately licensed professional as required by
Chapter 18.220 RCW or RCW 18.43.130.
The Port shall notify Ecology in writing of the identity of any engineering, geology
contractor and subcontractor firms and other firms to be used in carrying out the terms of this
Order in advance of their involvement at the Site.
F.

Access
Ecology or any Ecology authorized representative shall have the full authority to enter

and freely move about all property at the Site that the Port either owns, controls, or has access
rights to at all reasonable times, consistent with federal law, for the purposes of, inter alia:
inspecting records, operation logs, and contracts related to the work being performed pursuant to
this Order; reviewing the Port’s progress in carrying out the terms of this Order; conducting such
tests or collecting such samples as Ecology may deem necessary; using a camera, sound
recording, or other documentary type equipment to record work done pursuant to this Order; and

Agreed Order No. DE 7321
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verifying the data submitted to Ecology by the Port. The Port shall make all reasonable efforts to
secure access rights for those properties within the Site not owned or controlled by the Port
where remedial activities or investigations will be performed pursuant to this Order. Ecology or
any Ecology authorized representative shall give reasonable notice before entering any Site
property owned or controlled by the Port unless an emergency prevents such notice. All persons
who access the Site pursuant to this Section shall comply with any applicable Health and Safety
Plan(s), and with any applicable federal law, such as that regulating access for homeland security
purposes. Ecology employees and their representatives shall not be required to sign any liability
release or waiver as a condition of Site property access.
G.

Sampling, Data Submittal, and Availability
With respect to the implementation of this Order, the Port shall make the results of all

sampling, laboratory reports, and/or test results generated by it or on its behalf available to
Ecology. Pursuant to WAC 173-340-840(5), all sampling data shall be submitted to Ecology in
both printed and electronic formats in accordance with Section VII (Work to be Performed),
Ecology’s Toxics Cleanup Program Policy 840 (Data Submittal Requirements), and/or any
subsequent procedures specified by Ecology for data submittal.
If requested by Ecology, the Port shall allow split or duplicate samples to be taken by
Ecology and/or its authorized representative of any samples collected by the Port pursuant to
implementation of this Order. The Port shall notify Ecology seven (7) days in advance of
collecting samples at the Site pursuant to this Order; provided, however, that Ecology may waive
this notification requirement and accept samples where they were collected during construction
projects or other circumstances where sampling was prudent or necessary but unplanned; and
provided further, sampling conducted pursuant to the approved Contamination Contingency Plan
(Exhibit B) shall not require separate reporting as a result of this subsection. Ecology shall, upon
request, allow split or duplicate samples of any samples collected by Ecology pursuant to the
implementation of this Order to be taken by the Port or its authorized representative provided it
does not interfere with Ecology’s sampling. Without limitation on Ecology’s rights under

Agreed Order No. DE 7321
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Section VIII. F of this Order, Ecology shall notify the Port prior to any sample collection activity
unless an emergency prevents such notice.
In accordance with WAC 173-340-830(2)(a), all hazardous substance analyses shall be
conducted by a laboratory accredited under Chapter 173-50 WAC for the specific analyses to be
conducted, unless otherwise approved by Ecology.
H.

Public Participation
A Public Participation Plan is required for this Site. The approved Public Participation

Plan is attached as Exhibit D.
Ecology shall maintain the responsibility for public participation at the Site. However,
the Port shall cooperate with Ecology, and shall:
1.

If agreed to by Ecology, develop appropriate mailing list, prepare drafts of public

notices and fact sheets at important stages of the remedial action, such as the submission of work
plans, remedial investigation/feasibility study reports, cleanup action plans, and engineering
design reports. As appropriate, Ecology will edit, finalize, and distribute such fact sheets and
prepare and distribute public notices of Ecology’s presentations and meetings.
2.

Notify Ecology’s project coordinator prior to the preparation of all press releases

and fact sheets, if they concern implementation of this Order, and before any such major
meetings with the interested public and local governments. Likewise, Ecology shall notify the
Port prior to the issuance of all press releases and fact sheets, and before major meetings with the
interested public and local governments, all to the extent they concern implementation of this
Order. For all Port press releases, fact sheets, meetings, and other outreach efforts that concern
implementation of this Order that do not receive prior Ecology approval, the Port shall clearly
indicate to its audience that the press release, fact sheet, meeting, or other outreach effort was not
sponsored or endorsed by Ecology.
3.

When requested by Ecology, participate in public presentations on the progress of

the remedial action at the Site. Participation may be through attendance at public meetings to
assist in answering questions or as a presenter.

Agreed Order No. DE 7321
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4.

Except as provided by the approved Public Participation Plan (Exhibit D), when

requested by Ecology, arrange and/or continue information repositories to be located at the
following locations:
a.

On Ecology’s website which is freely accessible to the public.

b.

Department of Ecology-NWRO
3190 160th Avenue S.E.
Bellevue, WA 98008-5452

c.

Seattle Public Library
1000 4th Avenue
Seattle, WA 98104

At a minimum, electronic copies of all public notices, fact sheets, and press releases that concern
implementation of the Order; remedial action plans and reports, supplemental remedial planning
documents, and all other similar documents relating to performance of remedial actions required
by this Order shall be promptly placed in these repositories.
I.

Retention of Records
During the pendency of this Order, and for ten (10) years from the date of completion of

work performed pursuant to this Order, the Port shall preserve all records, reports, documents,
and underlying data in its possession relevant to the implementation of this Order. Upon request
of Ecology, the Port shall make all such records available to Ecology and allow access for review
within a reasonable time.
J.

Resolution of Disputes
1.

In the event a dispute arises as to an approval, disapproval, proposed change, or

other decision or action by Ecology’s project coordinator, or an itemized billing statement under
Section VIII. B. (Remedial Action Costs), the Parties shall utilize the dispute resolution
procedure set forth below.
a.

Upon receipt of Ecology’s project coordinator’s written decision or the

itemized billing statement, the Port has fourteen (14) days within which to notify
Ecology’s project coordinator in writing of its objection to the decision or itemized
statement.

Agreed Order No. DE 7321
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b.

The Parties’ project coordinators shall then confer in an effort to resolve

the dispute. If the project coordinators cannot resolve the dispute within fourteen (14)
days, Ecology’s project coordinator shall issue a written decision.
c.

The Port may then request regional management review of the decision.

This request shall be submitted in writing to the Hazardous Waste and Toxics Reduction
Section Manager, Northwest Region Office, within seven (7) days of receipt of Ecology’s
project coordinator’s written decision.
d.

The Section Manager shall conduct a review of the dispute and shall

endeavor to issue a written decision regarding the dispute within thirty (30) days of the
Port’s request for review. The Section Manager’s decision shall be Ecology’s final
decision on the disputed matter.
2.

The Parties agree to only utilize the dispute resolution process in good faith and

agree to expedite, to the extent possible, the dispute resolution process whenever it is used.
3.

Implementation of these dispute resolution procedures shall not provide a basis

for delay of any activities required in this Order, unless Ecology agrees in writing to a schedule
extension.
K.

Extension of Schedule
1.

An extension of schedule shall be granted only when a request for an extension is

submitted in a timely fashion, generally at least thirty (30) days prior to expiration of the
deadline for which the extension is requested, and good cause exists for granting the extension.
All extensions shall be requested in writing. The request shall specify:
a.

The deadline that is sought to be extended;

b.

The length of the extension sought;

c.

The reason(s) for the extension; and

d.

Any related deadline or schedule that would be affected if the extension

were granted.

Agreed Order No. DE 7321
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2.

The burden shall be on the Port to demonstrate to the satisfaction of Ecology that

the request for such extension has been submitted in a timely fashion and that good cause exists
for granting the extension. Good cause may include, but may not be limited to:
a.

Circumstances beyond the reasonable control and despite the due

diligence of the Port including delays caused by unrelated third parties or Ecology, such
as (but not limited to) delays by Ecology in reviewing, approving, or modifying
documents submitted by the Port;
b.

Acts of God, including fire, flood, blizzard, extreme temperatures, storm,

or other unavoidable casualty; or
c.

Endangerment as described in Section VIII. M (Endangerment).

However, neither increased costs of performance of the terms of this Order nor changed
economic circumstances shall be considered circumstances beyond the reasonable control of the
Port.
3.

Ecology shall act upon any written request for extension in a timely fashion.

Ecology shall give the Port written notification of any extensions granted pursuant to this Order.
A requested extension shall not be effective until approved by Ecology. Unless the extension is
a substantial change, it shall not be necessary to amend this Order pursuant to Section VIII. L
(Amendment of Order) when a schedule extension is granted.
4.

An extension shall only be granted for such period of time as Ecology determines

is reasonable under the circumstances. Ecology may grant schedule extensions exceeding ninety
(90) days only as a result of:
a.

Delays in the issuance of a necessary permit which was applied for in a

timely manner;
b.

Other circumstances deemed exceptional or extraordinary by Ecology; or

c.

Endangerment as described in Section VIII. M (Endangerment).

Agreed Order No. DE 7321
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L.

Amendment of Order
The project coordinators may orally agree to minor changes to the work to be performed

without formally amending this Order. In such a case, the Port shall submit a description of the
minor changes to Ecology’s Project Coordinator in writing within seven (7) days after the oral
agreement. Minor changes will then be documented in writing by Ecology within seven (7) days
after Ecology receives the Port’s written description.
Except as provided in Section VIII. N (Reservation of Rights), substantial changes to the
work to be performed shall require formal amendment of this Order. This Order may only be
formally amended by the written consent of both Ecology and the Port. The Port shall submit a
written request for amendment to Ecology for approval. Ecology shall indicate its approval or
disapproval in writing and in a timely manner after the written request for amendment is
received. If the amendment to this Order represents a substantial change, Ecology will provide
public notice and opportunity to comment.

Reasons for the disapproval of a proposed

amendment to this Order shall be stated in writing. If Ecology does not agree to a proposed
amendment, the disagreement may be addressed through the dispute resolution procedures
described in Section VIII. J (Resolution of Disputes).
M.

Endangerment
In the event Ecology determines that any activity being performed at the Site is creating

or has the potential to create a danger to human health or the environment on or surrounding the
Site, Ecology may direct the Port to cease such activities for such period of time as it deems
necessary to abate the danger. The Port shall immediately comply with such direction.
In the event the Port determines that any activity being performed at the Site is creating
or has the potential to create a danger to human health or the environment, the Port may cease
such activities. The Port shall notify Ecology’s project coordinator as soon as possible, but no
later than twenty-four (24) hours after making such determination or ceasing such activities.
Upon Ecology’s direction the Port shall provide Ecology with documentation of the basis for the

Agreed Order No. DE 7321
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determination or cessation of such activities. If Ecology disagrees with the Port’s cessation of
activities, it may direct the Port to resume such activities.
If Ecology concurs with or orders a work stoppage pursuant to this Section, the Port’s
obligations with respect to the ceased activities shall be suspended until Ecology determines the
danger is abated, and the time for performance of such activities, as well as the time for any other
work dependent upon such activities, shall be extended in accordance with Section VIII. K
(Extension of Schedule) for such period of time as Ecology determines is reasonable under the
circumstances.
Nothing in this Order shall limit the authority of Ecology, its employees, agents, or
contractors to take or require appropriate action in the event of an emergency.
N.

Reservation of Rights
This Order is not a settlement under Chapter 70.105D RCW. Ecology’s signature on this

Order in no way constitutes a covenant not to sue or a compromise of any of Ecology’s rights or
authority. Ecology will not, however, bring an action against the Port to recover remedial action
costs paid to and received by Ecology under this Order or the 1998 Order. In addition, Ecology
will not take additional enforcement actions against the Port regarding remedial actions required
by this Order, provided the Port complies with this Order.
Ecology nevertheless reserves its rights under Chapter 70.105D RCW, including the right
to require additional or different remedial actions at the Site should it deem such actions
necessary to protect human health and the environment, and to issue orders requiring such
remedial actions. Ecology also reserves all rights regarding the injury to, destruction of, or loss
of natural resources resulting from the release or threatened release of hazardous substances at
the Site.
O.

Transfer of Interest in Property
No voluntary conveyance or relinquishment of title, easement, leasehold, or other interest

in the Tank Farm Affected Area shall be consummated by the Port without provision for

Agreed Order No. DE 7321
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continued implementation of all requirements of this Order and implementation of any remedial
actions found to be necessary as a result of this Order.
Prior to the Port’s transfer of any interest in the Tank Farm Affected Area likely to
substantially affect the performance of work under this Order, and during the effective period of
this Order, the Port shall provide a copy of this Order to any prospective purchaser, lessee,
transferee, assignee, or other successor in said interest; and, at least fourteen (14) days prior to
any such transfer, the Port shall notify Ecology of said transfer. For purposes of this provision,
only those property interest transfers that involve planned capital improvements (for example,
such as excavation or pile driving) shall be considered likely to substantially affect the
performance of work under this Order. Upon transfer of any such interest, the Port shall restrict
uses and activities to those consistent with this Order and notify all transferees of the restrictions
on the use of the property.
P.

Compliance with Applicable Laws
1.

All actions carried out by the Port pursuant to this Order shall be done in

accordance with all applicable federal, state, and local requirements, including requirements to
obtain necessary permits, except as provided in RCW 70.105D.090.
2.

Pursuant to RCW 70.105D.090(1), the Port is exempt from the procedural

requirements of Chapters 70.94, 70.95, 70.105, 77.55, 90.48, and 90.58 RCW and of any laws
requiring or authorizing local government permits or approvals. However, the Port shall comply
with the substantive requirements of such permits or approvals.
The Port has a continuing obligation to determine whether additional permits or
approvals addressed in RCW 70.105D.090(1) would otherwise be required for the remedial
action under this Order. In the event either Ecology or the Port determines that additional
permits or approvals addressed in RCW 70.105D.090(1) would otherwise be required for the
remedial action under this Order, it shall promptly notify the other party of its determination.
Ecology shall determine whether Ecology or the Port shall be responsible to contact the
appropriate state and/or local agencies. If Ecology so requires, the Port shall promptly consult

Agreed Order No. DE 7321
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with the appropriate state and/or local agencies and provide Ecology with written documentation
from those agencies of the substantive requirements those agencies believe are applicable to the
remedial action.

Ecology shall make the final determination on the additional substantive

requirements that must be met by the Port and on how the Port must meet those requirements.
Ecology shall inform the Port in writing of these requirements. Once established by Ecology, the
additional requirements shall be enforceable requirements of this Order. The Port shall not begin
or continue the remedial action potentially subject to the additional requirements until Ecology
makes its final determination.
3.

Pursuant to RCW 70.105D.090(2), in the event Ecology determines that the

exemption from complying with the procedural requirements of the laws referenced in
RCW 70.105D.090(1) would result in the loss of approval from a federal agency that is
necessary for the State to administer any federal law, the exemption shall not apply and the Port
shall comply with both the procedural and substantive requirements of the laws referenced in
RCW 70.105D.090(1), including any requirements to obtain permits.
Q.

Financial Assurance
1.

Financial assurance for corrective action is required by WAC 173-303-64620.

Ecology’s Financial Assurance Officer shall determine when the Port’s actions and submissions
meet the requirements of WAC 173-303-64620.
2.

The Port must submit the executed or otherwise finalized financial assurance

instruments or documents to Ecology’s Financial Assurance Officer. In addition, the Port must
also submit copies of financial assurance instruments or documents to Ecology’s Project
Coordinator.
3.

Within sixty (60) days from the effective date of this Order, the Port shall submit

to Ecology for review and approval a written cost estimate to cover the following activities at the
facility: completion of the final feasibility study, submission of a draft CAP, implementation of
the final CAP, and post cleanup monitoring at the Site. If Ecology rejects the Port’s cost

Agreed Order No. DE 7321
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estimate as submitted, Ecology shall provide to the Port a revised cost estimate amount that will
be the approved cost estimate. Ecology will, if requested by the Port in writing, provide a
written explanation of the variance between the Port’s proposed cost estimate and Ecology’s
approved cost estimate. If Ecology does not accept, reject, or revise the Port’s cost estimate
within sixty (60) days after submittal, the Port’s cost estimate will be deemed approved for
purposes of this paragraph. Ecology reserves the right to review and revise the Port’s cost
estimate after the 60-day review period. If Ecology revises the the Port’s cost estimate after the
60-day review period, the Port will have thirty (30) days after the revision to provide an updated
financial assurance instrument. Within thirty (30) days after Ecology’s final approval of the
Port’s cost estimate amount or the Port’s receipt of Ecology’s final approval of the Port’s cost
estimate amount, the Port shall establish and maintain continuous coverage of financial
assurance in the amount of the approved cost estimate and submit the applicable financial
assurance documentation per paragraph 2, provided, however, that if the Port uses the financial
test mechanism, such documentation shall be timely if submitted within one hundred fifty days
(150) of the end of the Port’s next fiscal year.
4.

If the Port is required to submit an additional work plan(s) under this Order, or to

conduct activities related to corrective action not previously part of the original cost estimate, the
process outlined in paragraph 3 shall be used to submit a revised cost estimate concurrent with
the submission of an additional work plan(s).
5.

If the Port believes that the estimated cost of work to complete activities under

this Order has diminished below the amount covered by existing financial assurance provided
under this Order, the Port may submit a written proposal to Ecology to reduce the amount of the
financial assurance provided under this Section so that the amount of the financial assurance is
equal to the estimated cost of the remaining work to be performed. The written proposal shall

Agreed Order No. DE 7321
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specify, at a minimum, the cost of the remaining work to be performed and the basis upon which
such cost was calculated. If Ecology decides to accept such a proposal, Ecology shall notify the
Port of its decision in writing. After receiving Ecology’s written decision, the Port may reduce
the amount of financial assurance only in accordance with and to the extent permitted by such
written decision. Within thirty (30) days after receipt of Ecology’s written decision, the Port
shall submit the applicable financial assurance documentation per paragraph 2. No change to the
form or terms of any financial assurance provided under this Section, other than a reduction in
amount, is authorized under this paragraph.
6.

Within thirty (30) days of written notice of Ecology’s selection of a final remedy,

the Port shall prepare a detailed written estimate of the cost for the remaining amount of work to
be completed under this Order including, but not limited to, the final remedy, and submit the
same to both Ecology’s Financial Assurance Officer and Project Coordinator for review and
approval. The process outlined in paragraph 3 shall apply in the submission process of cost
estimates.
7.

All cost estimates must be based on the costs to the owner or operator of hiring a

third party to complete the work. A third party is neither a parent nor a subsidiary of the Port.
On a case-by-case basis, Ecology may also determine that a company which shares a common
higher-tier corporate parent or subsidiary might not qualify as a third party. A cost estimate may
not incorporate any salvage value that may be realized with the sale of wastes, facility structures
or equipment, land, or other assets associated with the facility.

The Port may also not

incorporate a zero cost for wastes that might have economic value.
8.

The Port shall annually adjust all cost estimates for inflation. Adjustments for

inflation shall be calculated in accordance with the procedure outlined in 40 CFR 264.142(b).

Agreed Order No. DE 7321
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9.

Acceptable financial assurance mechanisms are trust funds, surety bonds, letters

of credit, insurance, the financial test, and the corporate guarantee. Ecology may allow other
financial assurance mechanisms if they are consistent with the laws of Washington and if the
Port demonstrates to the satisfaction of Ecology that those mechanisms provide adequate
financial assurance.
10.

If the Port is using the financial test or corporate guarantee to meet their financial

assurance obligation, the annual inflationary adjustment shall occur within one hundred fifty
(150) days after the close of the Port’s fiscal year. If the Port is using any mechanism other than
the financial test or corporate guarantee, this adjustment shall occur each year within thirty (30)
days after the anniversary of the effective date of this Order.
11.

If the Port seeks to establish financial assurance by using a surety bond for

payment or a letter of credit, the Port shall at the same time establish and thereafter maintain a
standby trust fund acceptable to Ecology into which funds from the other financial assurance
instrument can be deposited, if the financial assurance provider is directed to do so by Ecology,
pursuant to the terms of this Order.
12.

The Port shall notify Ecology’s Project Coordinator and Financial Assurance

Officer by certified mail of the commencement of a voluntary or involuntary bankruptcy
proceeding, naming the Port as debtor, within ten (10) days after commencement of the
proceeding. A guarantor of a corporate guarantee must make such a notification if it is named as
debtor as required under the terms of the corporate guarantee.
a.

Once the Port has established financial assurance with an acceptable

mechanism, as described above, the Port will be deemed to be without the required
financial assurance:
1)

In the event of bankruptcy of the trustee or issuing institution; or

Agreed Order No. DE 7321
Page 35 of 37

2)

If the authority of the trustee institution to act as trustee has been

suspended or revoked; or
3)

If the authority of the institution issuing the surety bond, letter or

credit, or insurance policy has been suspended or revoked.
b.

In the event of bankruptcy of the trustee or a suspension or revocation of

the authority of the trustee institution to act as a trustee, the Port must establish a
replacement financial assurance mechanism by any means specified in WAC 173-303620 or other financial instrument as approved by Ecology within sixty (60) days after
such an event.
13.

Ecology’s Financial Assurance Officer is:
Name:
Address:
Telephone:
FAX:
E-mail:

R.

Kimberly Goetz
Washington State Department of Ecology
P.O. Box 47600
Olympia, WA 98504-7600
(360) 407-6754
(360) 407-6715
kgoe461@ecy.wa.gov

Indemnification
The Port agrees to indemnify and save and hold the State of Washington, its employees,

and agents harmless from any and all claims or causes of action for death or injuries to persons
or for loss or damage to property to the extent arising from or on account of acts or omissions of
the Port, its officers, employees, agents, or contractors in entering into and implementing this
Order. However, the Port shall not indemnify the State of Washington nor save nor hold its
employees and agents harmless from any claims or causes of action to the extent arising out of
the negligent acts or omissions of the State of Washington, or the employees or agents of the
State, in entering into or implementing this Order.

Agreed Order No. DE 7321
Page 36 of 37

IX.

SATISFACTION OF ORDER

The provisions of this Order shall be deemed satisfied upon the Port’s receipt of written
notification from Ecology that the Port has completed the remedial activity required by this
Order, as amended by any modifications, and that the Port has complied with all other provisions
of this Order.
X.

TERMINATION OF 1998 AGREED ORDER

This Order supersedes the 1998 Order and the 1998 Order is terminated by letter from
Ecology dated ________________.
XI.

ENFORCEMENT

Pursuant to RCW 70.105D.050, this Order may be enforced as follows:
A.

The Attorney General may bring an action to enforce this Order in a state or

federal court.
B.

The Attorney General may seek, by filing an action, if necessary, to recover

amounts spent by Ecology for remedial actions and orders related to the Site.
C.

In the event the Port refuses, without sufficient cause, to comply with any term of

this Order, the Port will be liable for:
1.

Up to three (3) times the amount of any costs incurred by the State of

Washington as a result of its refusal to comply; and
2.
D.

Civil penalties of up to $25,000 per day for each day it refuses to comply.

This Order is not appealable to the Washington Pollution Control Hearings Board.

This Order may be reviewed only as provided under RCW 70.105D.060.
//
//
//
//

Agreed Order No. DE 7321
Page 37 of 37

Effective date of this Order: _________________________________

PORT OF SEATTLE

STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY

By
Tay Yoshitani
Chief Executive Officer

By
Julie Sellick
Section Supervisor
Hazardous Waste and Toxics Reduction
Northwest Regional Office

PORT OF SEATTLE TERMINAL 91
Public Participation Plan

Historical photo from 1975, prior to Tank Farm Demolition

SEATTLE, WASHINGTON
February 2010
Prepared by
Washington State Department of Ecology
3190 160th Avenue SE
Bellevue, WA 98008-5452

1

TABLE OF CONTENTS
1.0 Introduction………………………………………...……………………………… 3
Steps in the Cleanup Process
Schedule and Sequence of Technical and Public Involvement Activities
Site History
Site Map
2.0 Contaminants of Concern..………..……...……………………..………………....8
3.0 Public Participation Activities and Responsibilities …………...…...…………9
Goals of this Public Participation Plan
Roles and Responsibilities
Public Outreach Activities
Formal Public Comment Period
Public Meetings and Hearings
Information Repositories
Site Register and Public Involvement Calendar
Mailing List
Website Information
4.0 Public Participation Grants and Technical Assistance……………………….13
Public Participation Plan Amendments
APPENDIX A –GLOSSARY……………………………………………………........14

2

1.0

Introduction

The Washington State Department of Ecology (Ecology) developed this public
participation plan pursuant to the Model Toxics Control Act (MTCA). The purpose of
the participation plan is to promote meaningful community involvement before
preparing an action plan for the future cleanup at Port of Seattle Terminal 91 (T91) (the
Site). The Site is located at the north end of Elliott Bay at 2001 West Garfield Street in
Seattle, Washington. The draft remedial investigation and feasibility study have
already been completed under a 1998 Agreed Order for this Site. The public comment
period for this new Agreed Order, includes the public review of the draft Remedial
Investigation and Feasibility Study.
This plan outlines the tools and methods that Ecology uses to inform the public about
Site activities. It also identifies opportunities for the community to get involved. This
plan addresses potential community concerns regarding the cleanup and defines public
participation activities that will take place as a part of the cleanup process. It is based
on Ecology’s MTCA regulations (Washington Administrative Code (WAC) 173-340-600
public participation). Ecology is committed to an open dialogue with the community to
ensure that interested parties can receive information as well as provide input during
the decision-making process.
Ecology and Port of Seattle negotiated a legal agreement called an Agreed Order (No.
7321) that formally describes their working relationship and outlines the scope of work.
The Port will draft a cleanup action plan (DCAP) and continue to clean up the Site.

3

Steps in the Cleanup Process
The MTCA rules detail each step in the cleanup process to ensure that cleanups are
thorough and protect human health and the environment. The chart below defines
these steps and how they apply to the project site. Legal documents such as “Agreed
Orders” or “Consent Decrees” further define some of the steps and associated time
frames. The cleanup process is complex. During the process, issues often arise that
need more scrutiny or evaluation, and may lead to changes in the scope or timing of the
project. At the same time, it is in everyone’s interest to complete a cleanup as quickly as
possible.
2. Site Hazard Assessment and Hazard
Ranking: An assessment is conducted to
1. Site Discovery and Initial
confirm the presence of hazardous substances
Investigation: Sites may be discovered in
and determine the relative threat the site poses
a variety of ways including reports from
to human health and the environment. Sites
the owner, an employee, or concerned
then are ranked from 1 (highest) to 5 (lowest).
citizens. Following discovery, an initial
investigation is conducted to determine
Port of Seattle Terminal 91 is listed on the state’s
Hazardous Sites List with a rank of 1; primarily due
whether or not a site warrants further
to the potential to contaminate Puget Sound.
investigation.

4. Feasibility Study: The Feasibility Study
takes the information from the Remedial
Investigation and identifies and analyzes
the cleanup alternatives available. As with
the Remedial Investigation, a workplan
will be prepared which describes how the
study will be done.

5. Cleanup Action Plan (CAP): A Cleanup
Action Plan is developed using information
gathered in the Remedial Investigation and
Feasibility Study. The plan specifies
cleanup standards and identifies cleanup
methods. It will also describe the steps to be
taken, including additional environmental
monitoring required during and after the
cleanup. Finally it will describe the
schedule for cleanup activities.

3. Remedial Investigation (RI): A Remedial
Investigation is a study to define the nature,
extent, and magnitude of contamination at a
site. Before a remedial investigation can be
conducted, a detailed workplan must be
prepared that describes how the investigation
work will be done.

6. Cleanup: Implementation of the
Cleanup Action Plan includes design,
construction, operations, and
monitoring.

4

Timeline of Technical and
Public Involvement Activities
Public Participation/
Communications Activity
♦ Fact sheet mailed - week of November 5th
♦ Public notice – November 5th
♦ Public comment period - draft PPP, Agreed
Order, and permit modification November 5
through December 19, 1997

Schedule
November
1997

Technical Activity
Pier 91 Treatment and Storage
Facility Permit Modification
and Terminal 91 Tank Farm
Site Agreed Order for
Remedial Investigation and
Feasibility Study

January 1998

Finalize Pier 91 Treatment and
Storage Facility Permit
Modification and Terminal 91
Tank Farm Site Agreed Order
for RI/FS

♦ Review and evaluate public comments
♦ Prepare responsiveness summary
♦ Prepare final PPP

March-July
2005

Terminal 91 Tank Farm
Demolition Independent
Interim Remedial Action

February 2010

Complete negotiations for
Agreed Order for Terminal 91

♦ Provided written notification to Ecology Site
Register, and Seattle and King County Public
Health Departments (January 10, 2005)
♦ Provided written notification to Seattle
Department of Planning and Development
(February 9, 2005)
♦ Provided written notification to potentially
liable persons (January 4, 2005)
♦ Posted a sign at the location visible to the
general public indicating what cleanup
actions were being conducted and
identifying a person to contact for more
information
♦ Prepare final draft PPP
♦ Published notice in Site Register
♦ Public Notice of Agreed Order

5

Site History
There have been various owners and companies of the Port of Seattle Terminal 91 (T91)
Complex throughout its history. From the late 1800s through 1920, owners of the T91
Complex included various railroads, land development companies, and private
individuals. The Great Northern Railroad began to develop the area in the early 1900s
by filling in the area between Magnolia Bluff and Queen Anne Hill. Fill material was
added to the area through 1920. A tank farm was present at the four-acre Tank Farm
Lease Parcel (Lease Parcel) portion of the Terminal, and that tank farm was for a time
(beginning in 1980) used as a permitted dangerous waste treatment and storage facility
(TSD). Constructed in the 1920s, it operated partially or fully as a fuel storage facility
during the late 1920s through the time it was demolished in 2005. Another former tank
farm historically was located in the area southwest of the Lease Parcel. Historical
documents for Terminal 91 showed this tank farm consisted of nine tanks containing
gasoline and oil, and that it was in existence from approximately 1927 to 1942. The U.S.
Navy acquired the entire T91 Complex in 1942 through condemnation and operated the
tank farm on the Lease Parcel until 1972. During the Navy’s possession of the T91
Complex, the Lease Parcel was used primarily as a fuel and lubricating oil transfer
station. The Navy began leasing T91 back to Port of Seattle (the Port) in 1972 and
deeded it to the Port in 1976.
Chemical Processors, Inc. (Chempro), a predecessor of Burlington Environmental Inc.
(BEI) and Philip Services Corporation (PSC), subleased the Lease Parcel from the Port
when the Port leased it back from the Navy. The main activities conducted by Chempro
and its successors were waste oil recovery and wastewater treatment. Typical waste
streams included oil and coolant emulsions, industrial wastewater, and industrial waste
sludge. Bilge and ballast waters were primarily received from ships and transferred to
the Lease Parcel via pipeline. Other wastes and wastewater were received via tankers or
in drums.
Chempro notified the U.S. Environmental Protection Agency (EPA) of its dangerous
waste activities at the Lease Parcel on November 14, 1980, and federal permitting
requirements became effective November 19, 1980 for its waste management operations.
BEI and the Port (as operator and owner, respectively) were issued a Part B Resource
Conservation and Recovery Act (RCRA) permit effective August 22, 1992 for the
continued operation of a permitted dangerous waste management facility at the Lease
Parcel. In September 1995, BEI ceased operations at the Lease Parcel and terminated its
lease with the Port. BEI subsequently performed aboveground closure activities of all
permit-related facility equipment, secondary containment, and treatment units pursuant
to an approved closure plan. The closure activities performed under this plan were
approved by Ecology in October 2003. A Part B RCRA permit remains in effect for
corrective action at the Site.
6

From about 1974 through 1995, Chempro and its successors also sublet a portion of the
Lease Parcel to Pacific Northern Oil Corporation (PNO) for storage of non-regulated
bunker oil and other fuel products. PNO used aboveground and underground piping
systems at the Site to transfer bunker oil and fuels in the Lease Parcel and other areas of
the Terminal 91 Complex, which included blending and storage of marine boiler fuel,
diesel, and other petroleum products.
PNO entered a new lease for the entire Lease Parcel to continue operations of the bunker
oil, lube oil, and fuels product storage and blending facility after PSC’s above closure
action. PNO terminated its lease with the Port in 1999 and discontinued its fuel product
and blending operations at the Site. Subsequently, the Port entered into an agreement
with Fuel and Marine Marketing (FAMM), and that entity conducted bunker oil and
fuel product storage, blending and marketing operations at the Site until early 2003,
when FAMM terminated its lease of the facility. FAMM also subleased the lube-oil
portion of the operation to Rainier Petroleum in order to operate tankage at the tank
farm until August 2003. Delta Western was hired to provide terminaling operations
during this period, and, after August 2003, monitored the facility in caretaker status.
The tank farm remained idle after 2003. The Port decided to remove the remaining
aboveground equipment to reduce risks of hazardous substance releases. In the spring
of 2005, the Port initiated product removal and demolition activities, including paving of
the Lease Parcel, as part of an independent interim remedial action. That interim action
was completed in the summer of 2005.
Historically, chemicals of concern at the Lease Parcel include petroleum products,
which are considered hazardous substances under MTCA, as well as volatile organic
compounds, semi-volatile organic compounds including polycyclic aromatic
hydrocarbons, metals, and polychlorinated biphenyls. These substances were released
to soil and groundwater primarily from aboveground storage tanks, fuel distribution
piping systems, and other activities associated with historical operations at the Site.
These activities included storage of petroleum products and treatment and storage of
dangerous waste. Results from soil and groundwater investigations performed over the
past twenty years along with results from current annual groundwater monitoring have
been submitted to Ecology and EPA.
The findings discussed in the remedial investigation summary report and the other
documents that were incorporated by reference were used in preparing a feasibility
study; and will provide the basis for selection of potential cleanup actions at the Site.

7

Port of Seattle Terminal 91 Site Map

2.0

CONTAMINANTS OF CONCERN

The following hazardous substances are chemicals of concern (COCs) for subsurface soil
and groundwater at the site.
• Gasoline-range petroleum hydrocarbons.
• Diesel-range petroleum hydrocarbons.
• Heavy-oil-range petroleum hydrocarbons.
• Metals.
• Polychlorinated biphenyls.
8

•
•

3.0

Semi-volatile organic compounds, including polycyclic aromatic hydrocarbons.
Volatile organic compounds.

PUBLIC PARTICIPATION ACTIVITIES AND RESPONSIBILITY

The purpose of this Public Participation Plan is to promote public understanding and
participation in the cleanup process for this site. This section addresses how Ecology
will keep the public informed about site activity and provide opportunity for being
involved in the cleanup.
Ecology will continue to use a variety of tools to facilitate public participation in the
planning and cleanup of this site. These tools are: formal comment periods and
responsiveness summaries, fact sheets, public meeting (if required), information
repositories, site register, and web tools including a web-based events calendar.
Ecology will consider and implement constructive input provided by the community
whenever possible.
Ecology urges the public to become involved in the remedial action process.
Information will be provided regularly to allow several opportunities to review
materials and submit comments. This plan is intended to be a flexible working
document that will be updated as community concerns emerge and/or more
information becomes available during the cleanup process. To arrange for a briefing
with project staff, ask questions, or provide comments on the plan or other aspects of
the cleanup, please contact one of the persons listed below. This public participation
plan will be a working document as the project progresses.
For technical questions, please contact:
Galen Tritt, Site Manager
Washington State Department of Ecology
Bellingham Field Office
1440 10th Street, Suite 102
Bellingham, WA 98225-7028
Phone: (360) 715-5232
E-mail: gtri461@ecy.wa.gov

9

For Community Involvement questions for Port of Seattle, please contact:
Sally del Fierro
Port of Seattle—Community Relations, Public Affairs
P.O. Box 1209
Seattle, WA 98111
Phone: (206) 787-3837
E-mail: delfierro.s@portseattle.org

Goal of this Public Participation Plan
MTCA states that public participation plans are intended to encourage coordinated and
effective public involvement tailored to the public’s needs at a particular facility. The
goals of this plan are to:
• Identify people and organizations with an interest or potential interest in the Site
Remedial Investigation and Feasibility Study process and findings.
• Identify community concerns related to the Feasibility Study and ways to address
those concerns.
• Promote public understanding of the proposed Agreed Order, Feasibility Study,
and Draft Cleanup Action Plan process and findings.
• Encourage communication and collaboration among Ecology, the Port, and the
community.
• Meet public participation requirements under MTCA and the Dangerous Waste
Regulations (WAC 173-340-530(6), WAC 173-340-600, and WAC 173-303-840).

Roles and Responsibilities
•
•

Ecology maintains overall responsibility and approval authority for the activities
outlined in this plan in accordance with MTCA requirements.
Ecology conducts public comment periods as required by MTCA. Activities
performed during the public comment periods include:
o Receiving comments.
o Making decisions.
o Preparing responsiveness summaries, if necessary.

Public Outreach Activities
•

•

A 45-day public comment period will be scheduled for the proposed Agreed Order
and Dangerous Waste Permit renewal.
A formal public notice for the comment period will include:
a. A fact sheet distributed to the affected community and surrounding areas.
b. A notice placed in the Seattle Times and the Queen Anne/Magnolia News.

10

c. A notice published in Ecology’s Site Register and Public Involvement
Calendar.
d. All public documents available on Ecology’s website for public review.
e. A public meeting held if ten or more people request a meeting during the
public comment period.

Formal Public Comment Period
Comment periods are the primary method Ecology uses to get feedback from the public
on proposed cleanup decisions, which Ecology presents as draft documents. Comment
periods usually last for a minimum of 30 days and are required during the investigation
and cleanup process before final decisions are made.
During a comment period, the public can comment in writing. Oral comments are
taken if a public hearing is held. After formal comment periods, Ecology reviews all
comments received and may respond in a document called a Responsiveness Summary.
Ecology will consider changes or revisions to draft documents based on input from the
public. If significant changes are made, a second comment period may be held. If no
significant changes are made, the draft document(s) will be finalized.

Public Meetings and Hearings
Public meetings may be held during the cleanup process. Ecology may also offer
public meetings for actions of particular interest to the community. Also, if ten or more
people request a public meeting or hearing during the comment period, Ecology will
hold a public meeting for the purpose of taking oral comments on draft documents.

Information Repositories
Information repositories are convenient places where the public can go to read and review
site information. The information repositories are often at libraries or community sites to
which the public has access. During the comment period, the Draft Dangerous Waste
Permit, Draft Agreed Order and the Fact sheet will be available for review at each repository
listed below. These documents will remain at the repositories for the entire duration of the
comment period. The entire site file is available for review at Ecology’s Northwest Regional
Office by appointment. For special accommodation or translation assistance, please contact
Galen Tritt at (360) 715-5232 Persons with hearing loss, call 711 for Washington Relay
Service. Persons with speech disability call 877-833-6341.

11

Seattle Public Library—Central
1000 Fourth Avenue
Seattle, WA 98104
206-386-4636
Seattle Public Library—Magnolia Branch
2801 34th Avenue W.
Seattle, WA 98199
206-386-4225
Port of Seattle—Pier 69
2711 Alaskan Way
Seattle, WA 98121
206-787-3837
Washington State Department of Ecology
3190 160th Ave., S.E.
Bellevue, WA 98008
Call for an appointment: Sally Perkins
(425) 649-7190
(425) 649-4450 FAX
E-mail: sper461@ecy.wa.gov
Hours: Tuesday – Thursday, 8 AM – 12:00 PM and 1:00 – 4:30 PM

Site Register and Public Involvement Calendar
Ecology’s Toxics Cleanup Program uses Site Register and web-based Public
Involvement Calendar to announce all of its public meetings and comment periods as
well as additional site activities. To receive the Site Register in electronic or hard copy
format, contact Linda Thompson at 360-407-6069 or by email at ltho461@ecy.wa.gov.
The Public Involvement Calendar is available on Ecology’s website at
http://apps.ecy.wa.gov/pubcalendar/calendar.asp

Mailing List
Ecology compiled and maintains a list of interested parties, organizations, and residents
living near the cleanup site. This list will be used to disseminate information by mail
(fact sheets, site updates, public notices, etc.). If you wish to be added to the mailing
list for this site please contact Galen Tritt at 360-715-5232 or by email at

12

gtri461@ecy.wa.gov. In the subject line, please indicate Port of Seattle Terminal 91
mailing list.

Website Information
Ecology Website:
http://www.ecy.wa.gov/programs/tcp/sites/portTerm91/portTerm91_hp.html

4.0

Public Participation Grants and Technical Assistance

Additionally, citizen groups living near contaminated sites may apply for public participation
grants (during open application periods). These grants help citizens receive technical assistance
in understanding the cleanup process and create additional public participation avenues. For
more information about the public participation grant, please go to Ecology’s website at
http://www.ecy.wa.gov/programs/swfa/grants/ppg.html.
NOTE: Ecology currently does not have a citizen technical advisor for providing technical
assistance to citizens on issues related to the investigation and cleanup of the Site.

Public Participation Plan Amendments
The Plan was developed by Ecology and complies with the Model Toxics Control Act
regulations (Chapter 173-340 WAC). It will be reviewed as cleanup progresses and may be
amended if necessary. Requests for amendments may be submitted to Ecology’s site manager,
Galen Tritt, for review and consideration.

13

APPENDIX A – GLOSSARY
Agreed Order: An order issued by the Department of Ecology under WAC 173340-530 with which the potentially liable person receiving the order agrees to
comply.
Cleanup: The implementation of a cleanup action, or interim action.
Cleanup Action: Any remedial action, except interim actions, taken at a site to
eliminate, render less toxic, stabilize, contain, immobilize, isolate, treat, destroy,
or remove a hazardous substance that complies with WAC 173-340-350 through
173-340-390.
COCs: Chemicals of Concern are hazardous substances of particular concern at
this site.
Comment Period: A time period during which the public can review and comment
on various documents and proposed actions. For example, a comment period may
be provided to allow community members to review and comment on proposed
cleanup action alternatives and proposed plans.
Consent Decree: A legal document approved and issued by a court which
formalizes an agreement reached between the state and potentially liable persons
(PLPs) on actions needed at a site. A decree is subject to public comment. If a
decree is substantially changed, an additional comment period is provided.
Containment: A container, vessel, barrier, or structure, whether natural or
constructed, which confines a hazardous substance within a defined boundary
and prevents or minimizes its release into the environment.
Contaminant: Any hazardous substance that does not occur naturally or occurs
at greater than natural background levels.
Dangerous Waste permit: An authorization which allows a person to perform
dangerous waste transfer, storage, treatment, or disposal operations, and which
typically will include specific conditions for such facility operations. A
dangerous waste permit is necessary through corrective action work even after
dangerous waste operations stop.
Environment: Any plant, animal, natural resource, surface water (including
underlying sediments), ground water, drinking water supply, land surface
(including tidelands and shorelands) or subsurface strata, or ambient air within
the state of Washington.

14

Facility: Any building, structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly-owned treatment works), well, pit,
pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle,
rolling stock, vessel, or aircraft; or any site or area where a hazardous substance,
other than a consumer product in consumer use, has been deposited, stored,
disposed of, placed, or otherwise come to be located there.
Interim Action: Any remedial action that partially addresses the cleanup of a
site. An action that is technically necessary to reduce a threat to human health or
the environment by eliminating or substantially reducing pathways for exposure
to a hazardous substance at a facility; an action that corrects a problem that may
become substantially worse or cost substantially more to address if the action is
delayed; an action needed to provide for completion of a site hazard assessment,
state remedial investigation/feasibility study, or design of a cleanup action.
Model Toxics Control Act (MTCA): Refers to chapter 70.105D RCW, first approved
by voters in the state of Washington in November 1988 general election as Initiative 97
and as since amended by the legislature.
Public Notice: At a minimum, adequate notice mailed to all persons who have
made a timely request to Ecology and notice to persons residing in the
potentially affected vicinity of the proposed action; mailed to appropriate news
media; published in the local (city or county) newspaper of largest circulation;
and the opportunity for interested persons to comment.
Public Participation Plan: A plan prepared under the authority of WAC 173340-600 to encourage coordinated and effective public involvement tailored to
the public's needs at a particular site.
RCRA: Resource Conservation and Recovery Act was enacted by Congress in
1976. RCRA's primary goals are to protect human health and the environment
from the potential hazards of waste disposal, to conserve energy and natural
resources, to reduce the amount of waste generated, and to ensure that wastes
are managed in an environmentally sound manner.
Responsiveness Summary: A compilation of all questions and comments into a
document open for public comment and their respective answers/replies by
Ecology. The responsiveness summary is mailed, at a minimum, to those who
provided comments, and its availability is announced in the Site Register.

15

Site Register: Publication issued every two weeks of major activities conducted
statewide related to the study and cleanup of hazardous waste sites under the
Model Toxics Control Act. To receive this publication, please call (360) 407-7200.
Underground Storage Tank (UST): An underground storage tank and
connected underground piping as defined in the rules adopted under Chapter
90.76 RCW.

16

Agreed Order No. DE _________________

Exhibit E
List of Reports Since 1998 Agreed Order

Exhibit E
Reports Since 1998 Agreed Order
A.

Aspect Consulting Reports
Aspect Consulting. 2003. Memorandum to Terminal 91 Technical Group re
Preliminary Results—Limited Tidal Monitoring Study, Piers 90 and 91. July
1, 2003.
Aspect Consulting. 2004. Bridge Document Report 3, Terminal 91 Tank
Farm Site. Prepared for Port of Seattle and Pacific Northern Oil Corp. May
7, 2004.
Aspect Consulting. 2004. Groundwater Seepage Evaluation Report, Terminal
91 Tank Farm Site. Prepared for Port of Seattle and Pacific Northern Oil
Corporation. November 18, 2004.
Aspect Consulting. 2005. Letter Report re Shallow Aquifer Well Installation
and Development—Terminal 91 Tank Farm Site. Prepared for Port of Seattle.
February 2, 2005.

B.

Philip Services Corporation Reports
Philip Services Corporation. 1999. Agency Draft Remedial Investigation/
Data Evaluation Report, Terminal 91 Tank Farm Site, Seattle, Washington.
Prepared for The Terminal 91 Tank Farm PLP Group. January 6, 1999.
Philip Services Corporation. 2001. Soil Vapor Technical Memorandum No.
1, Terminal 91 Tank Farm Site, Seattle, Washington. Prepared for Port of
Seattle, Philip Services Corporation, and Pacific Northern Oil Corporation.
December 2001.
Philip Services Corporation. 2003. Soil Vapor Technical Memorandum No.
2, Terminal 91 Tank Farm Site, Seattle, Washington. Prepared for Port of
Seattle, Philip Services Corporation, and Pacific Northern Oil Corporation.
June 2003.

C.

PES Environmental, Inc. Reports
PES Environmental, Inc. 2006. MNA Evaluation Technical Memorandum,
Terminal 91 Tank Farm Site, Seattle Washington. Prepared for Port of
Seattle. April 24, 2006.
PES Environmental, Inc. 2006. LNAPL Pilot Test Findings, Terminal 91
Tank Farm Site, Seattle, Washington. Prepared for Port of Seattle. November
1, 2006.
PES Environmental, Inc.
2006.
MNA Evaluation Final Technical
Memorandum, Terminal 91 Tank Farm Site, Seattle, Washington. Prepared
for Port of Seattle. October 27, 2006.

Page 1 of 3

PES Environmental, Inc. 2006. Soil-to-Groundwater Pathway Evaluation,
Residual Saturation Screening Level Evaluation, Port of Seattle—Terminal 91
Tank Farm Site, Agreed Order No. DE 98HW-N108. Prepared for Port of
Seattle. September 5, 2006.
PES Environmental, Inc. 2007. Technical Memorandum and Work Plan
Addendum, Data Gaps Investigation, Port of Seattle—Terminal 91 Tank Farm
Site and Upland Areas. Prepared for Port of Seattle. August 15, 2007.
PES Environmental, Inc. 2008. Technical Memorandum, Phase 2 Data Gaps
Investigation, Port of Seattle—Terminal 91 Tank Farm Site and Upland
Areas. Prepared for Port of Seattle. June 5, 2008.
PES Environmental, Inc. 2008. Final Residual Saturation Screening Level
Evaluation, Feasibility Study Soil-to-Groundwater Pathway Evaluation, Port
of Seattle—Terminal 91 Tank Farm Site, Agreed Order No. DE 98HW-N108.
Prepared for Port of Seattle. September 5, 2008.
PES Environmental, Inc. 2008. Technical Memorandum, Phase 3 Data Gaps
Investigation, Port of Seattle—Terminal 91 Tank Farm Site and Upland
Areas. Prepared for Port of Seattle. December 31, 2008.
PES Environmental, Inc. 2009. Draft Feasibility Study Report, Terminal 91
Site, Seattle, Washington. Prepared for Port of Seattle. February 2009.
D.

PIONEER Technologies Corporation Reports.
PIONEER Technologies Corporation. 2004. Soil Vapor Evaluation, Building
M-28, Terminal 91 Tank Farm Site, Seattle, Washington. Prepared for
Terminal 91 PLP Group. September 2004.
PIONEER Technologies Corporation. 2005. Memo to Department of
Ecology re Evaluation of Groundwater Data from the Terminal 91 Tank Farm
Site: Proposal to Discontinue Groundwater Sampling at Selected Wells.
Prepared for Port of Seattle. March 4, 2005.
PIONEER Technologies Corporation. 2007. Terminal 91 Tank Farm Site
Background Groundwater Evaluation. Prepared for Port of Seattle. January
2007.
PIONEER Technologies Corporation. 2008. Terminal 91 Tank Farm Site
Feasibility Study Cleanup Levels. Prepared for Port of Seattle. May 2008.
PIONEER Technologies Corporation. 2008. Terminal 91 Tank Farm Site
Feasibility Study Interim Deliverable Comparison of Groundwater Data to
Feasibility Study Cleanup Levels. Prepared for Port of Seattle. August 2008.

E.

Port of Seattle and Timothy Fitzgerald, L.G. 2002. Tidal Study Report, Terminal
91 Tank Farm Site and Terminal 91 Upland Independent Cleanup. Prepared for
Port of Seattle, Philip Services Corporation, and Pacific Northern Oil
Corporation. November 8, 2002.

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F.

Port of Seattle. 2005. Letter Report to Port of Seattle re Shallow Upland Well
Installation and Development, Terminal 91 Tank Farm Site (Agreed Order DE
98HW-N108). October 2, 2005.

G.

Roth Consulting Reports
Roth Consulting, Quarterly Status Reports for Terminal 91 Tank Farm Site.
From Second Quarter 1998 (report dated July 1998) through First Quarter
2009 (report dated April 2009).
Roth Consulting, Annual Ground Water Monitoring Reports for Terminal 91
Tank Farm Site (reports dated June 1999 through June 2009).
Roth Consulting. 2000. Letter to Ecology re Transmittal of Data Validation
Report and Data Comparison Memo. August 19, 2000.
Roth Consulting. 2001. Proposed Final Bridge Document Report 1, Terminal
91 Tank Farm Site. Prepared for Port of Seattle, Philip Services Corporation,
and Pacific Northern Oil Corporation. November 21, 2001.
Roth Consulting. 2002. Piezometer Installation Report, Terminal 91 Tank
Farm Site. Prepared for Port of Seattle, Philip Services Corporation, and
Pacific Northern Oil Corporation. March 2002.
Roth Consulting. 2002. Downgradient Well Installation Report, Terminal 91
Upland Independent Cleanup. Prepared for Port of Seattle. September 2002.
Roth Consulting. 2003. Bridge Document Report 2, Terminal 91 Tank Farm
Site, Seattle, Washington. Prepared for Port of Seattle, Philip Services
Corporation, and Pacific Northern Oil Corporation. January 2003.
Roth Consulting. 2005. Independent Interim Remedial Action Report,
Terminal 91 Tank Farm Demolition, 2001 West Garfield Street, Seattle,
Washington. Prepared for Port of Seattle. October 18, 2005.
Roth Consulting. 2007. Final Remedial Investigation Summary Report.
Prepared for Port of Seattle. August 2007.

H.

Sayler Data Solutions. 2000. Data Validation Report, Terminal 91 Groundwater
Data, April 1998 through October 1999. Prepared for Terminal 91 PLP Group.
August 9, 2000.

I.

Sayler Data Solutions. 2000.
Comparison. August 15, 2000.

Memorandum to Roth Consulting re Data

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