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HomeMy WebLinkAboutAgenda Packet 02/10/2009 Department of Ecology and Port Angeles City Council Tuesday, February 10,2009 Port Angeles City Hall 2:00 to 3:00 p.m. Purpose of the Meeting: To discuss community projects in partnership with Department of Ecology and to provide an opportunity for Department of Ecology to answer City Council questions in a public forum AGENDA 1. Opening comments by the City Manager A. Community goals for the Port Angeles area B. Opportunity to achieve community changing partnerships 2. Department of Ecology A. Sally Toteff, Regional Director, Olympic Peninsula and Southwest Washington Office: Overview of Department of Ecology and its role in working with the City of Port Angeles' environmental projects and issues B. Jim Pendowski /Rebecca Lawson, Toxic Cleanup Program: How the Toxic Cleanup Program works with contaminated sites in Port Angeles Harbor - technical assistance, grants, investigator, collaborator, and regulator C. Other comments regarding City projects and interests 3. City Council comments and questions ~ORTANGELES WAS H I N G TON, U. S. A. 1. CITY COUNCIL SPECIAL MEETING CALL TO ORDER - SPECIAL MEETING: II. ROLL CALL: Members Present: Mayor Braun Deputy Mayor Wharton Councilmember Di Guilio Councilmember Kidd Councilmember Perry Councilmember Rogers Councilmember Williams Staff Present: Manager Myers Attorney Bloor Clerk Upton G. Cutler T. Gallagher D. McKeen N. West Y. Ziomkowski =Z ~ V' ./ -+- /' v February 10. 2009 ~. III. PLEDGE OF ALLEGIANCE: Led by: (J..Q.t.J t\t!.j QfY\ D ~~.J".1 JkQ(1 ~ ~../ FORTANGE.LES CITY COUNCIL SPECIAL MEETING Attendance Roster WAS H J N G TON, U. S. A. DATE OF MEETING: February 10.2009 LOCA TION: City Council Chambers " ,1 n I" 4 1 ~i.: c; Ii;, I C' :: ,[ ~~. f\ :r~~. .-Jt' I[ If t\ (( ~ l L \... Lt.< ': ,/: '. ''/.... '6 . \\ '"~. ~.~ .... '< 't , \':1\'1. ~ \ ' C-?r- t.: ~ ..s ~, c I J >- 3 7 ~I '7 l' " S+, .' STATE OF WASHINGTON DEPARTMENT OF ECOLOGY PO Box 47600 . Olympia, WA 98504-7600 . 360-407-60()O 711 for Washington Relay Service. Persons with a speech disability can call 877-833-6341 February 9, 2009 Ms. Betsy Wharton, Deputy Mayor City of Port Angeles P. O. Box 1150 Port Angeles, Washington 98362 Dear Deputy Mayor Wharton: Thank you for your January 30, 2009, email about the Harborworks funding news article. I will try to answer your questions as directly as possible. 1. Is Port Angeles Harbor a priority cleanup site for the state of Washington? Yes; The Department of Ecology's (Ecology) Toxics Cleanup Program (TCP) identified Port Angeles Harbor as one of its priority embayments as part of the Governor's called for focused efforts to restore and protect Puget Sound. Also, Ecology is committed to the Governor's Puget Sound Agenda and thus, Port Angeles is a priority for the Agency. 2. Despite the rocky start, is Ecology willing to partner with Harborworks and make grants available for site remediation? Yes; Ecology will work with Harborworks and intends to prioritize grant funding for site remediation. As a local government, Harborworks can qualify for state Remedial Action Grants to reimburse costs for the Rayonier cleanup contingent on the following conditions: · Harborworks must acquire the property and accept liability as part of that acquisition. · Harborworks must be under Agreed Order or Consent Decree with Ecology, which commits it (Harborworks) to a schedule to conduct and complete all necessary studies including implementing the selected remedy. This would include any long- term monitoring, preservation of institutional controls and operation and maintenance cost for the remedy. Ecology does not enter into Agreed Orders or Consent Decrees with local governments which are contingent on grant funding from the State. If Harborworks acquires the property, it will be obligated to carry out the cleanup responsibilities regardless of state funding. ~<r(~iN~J)l" o Ms. Betsy Wharton, Deputy Mayor February 9, 2009 Page 2 3. Given these uncertain economic times, and a budget that has to pass legislative muster: · What if Harborworks signs an agreement with Rayonier that assumes state matching funds will be available for part of the cleanup, but we find out later the funds have been reprioritized or otherwise cut from the budget? As mentioned in response to the previous question, Harborworks would remain obligated to undertake the cleanup of the Rayonier property. That obligation is not contingent on the availability of state grant funding. With that being said, several aspects of the remedial action grant need to be considered. First, the remedial action grant program has been an option for local government for the past twenty years. During that period of time, we have provided over $340 million dollars to local governments to support their cleanup efforts. Second, Ecology has always met its commitments once we have entered into grant agreements with local governments. I Third, we have successfully managed variations in legislatively appropriated grant funds by adjusting cleanups schedules to match available cash flow. The remedial action grant program is a reimbursement program for eligible costs and can often reimburse retro- actively incurred costs. Thus, even if grant levels decline temporarily, and Harborworks continues to do work under the Agreed Order or Consent Decree, it would likely be eventually reimbursed for its eligible costs. Finally, once a local government has entered into the remedial action grant program, its grant remains a priority and historically, such projects have been funded to completion of the work. · Does Harborworks become liable on their own to make up the shortfall? As mentioned above, it is unlikely there would be a shortfall in the sense of uncovered eligible cost if Harborworks was under Agreed Order or Consent Decree to Ecology and in the remedial action grant program. Work under Order and within the scope work under the grant will be reimbursed as funds are appropriated by the Legislature. The most likely question would be the timing of that reimbursement if there were legislative reductions in grant funding levels. Once again,. over the course of the remedial action grant program, local governments have always been reimbursed for their eligible costs once they have entered into a grant agreement with Ecology. 4. What are the regulatory safeguards that can be included in the PDA's transfer of liability agreements that will ensure the community of Port Angeles does not accidentally take on liability for the hazardous site cleanup? ( Ms. Betsy Wharton, Deputy Mayor February 9, 2009 Page 3 By definition, the knowing acquisition of a hazardous waste site includes acquiring cleanup liability. However, as between potentially liable persons, often times such risk is handled through side agreements designed to address who will take on which kinds of liabilities. Such side agreements often address both currently known and unknown cleanup liabilities. An added tool under state cleanup law is that prospective purchasers of contaminated property can request a Prospective Purchaser Consent Decree from Ecology. This is an agreement that establishes a purchaser's liability to Ecology before purchase. We would be happy to discuss the possibility of a prospective purchaser consent decree with Harborworks. As we understand it, Harborworks is created by the underlying authority of both the City of Port Angeles and the Port of Port Angeles. How the structure of that authorization protects the Port Angeles community from accidentally taking on liability (both known and unknown) is not a determination that Ecology can make. It is a question best directed to the legal counsel of the respective governments. The regulatory safeguards that Ecology focuses on relate to the cleanup $tandards for the site. We are not involved in the purchase and sale process. Conversely, the purchase and sales agreement cannot alter the cleanup requirements. It will only determine who Ecology will look to . carry them out. ' 5. Why would the state want to make public grant funding available to help with a cleanup on a site where there is a known liable party? The remedial action grant program has been available to local governments for the past twenty years. For the first ten years of the program, it was largely characterized by grants to local governments so they could simply cleanup their old landfills or remove old underground storage tanks at public works facilities. In other words, addressing solely the contamination that they caused and located on property they owned. Over the past ten years the trend has been significantly different. Now, much of the remedial action grant funding is directed towards remedial actions focusing on economic development, recreation or habitat restoration. This has been true for properties local government initially contaminated or contaminated property they acquired. Public acquisition of privately owned contaminated property is not prohibited by the Model Toxics Control Act (MTCA) nor is providing remedial action grant funds to those publically-acquired sites. In fact, recent amendments (House Bill 1761) to MTCA encourage Ecology to foster such strategies. These amendments direct Ecology to partner with local governments to expedite cleanups and enhance Puget Sound restoration. This amendment to MTCA specifically references recreation, habitat restoration and economic development as partnering objectives. These are values that are not typically the objectives of private property owners, who are usually seeking to minimize costs and are not focused on larger community interests. Ms. Betsy Wharton, Deputy Mayor February 9, 2009 Page 4 Will Harborworks involvement allow Rayonier to walk away from some of their responsibility? No, not if the agreements are structured properly. Regardless of the agreement Harborworks makes with Rayonier, Rayonier remains jointly and separately liable to Ecology. Also, as mentioned previously, purchase and sale agreements are about assignment of responsibilities for the cleanup of contamination at a given property as between potentially liable persons. Side agreements are usually negotiated between the buyer and seller to address contingencies such as which liabilities the buyer, versus the seller, will hold. 6. What, in your mind, does the Harborworks need to accomplish during the first six months of 2009 to be considered a viable option for an Ecology partnership? It's inappropriate for Ecology to create a list of accomplishments for Harborworks. That's a role for the governing body and the Port Angeles community. 7. Where, specifically in the Governor's budget, would we find reference to Port Angeles Harbor remediation funding? The Governor's proposed 09-11 budget includes $37.7 million dollars for remedial action grants. Of this amount, the Taxies Cleanup Program (TCP) is reserving about $3.5 million for voluntary cleanup reimbursements to local government and integrated planning grants. We reimburse voluntary cleanups conducted by local governments to a maximum amount of $200, 000 of eligible cost. We also provide integrated planning grants (maximum amount of $200, 000), which can be used to support the due diligence process in property acquisition by local govern- ment. We are reserving that amount for use in the public acquisition of the Rayonier Mill Site. Should this remedial action grant funding level remain in the adopted budget, we can provide that commitment. In addition, the Governor's Budget recommended reappropriating about $9 million dollars for TCP's on-going Puget Sound Initiative work. This is the money TCP has used to fund several work efforts in Port Angeles, including the off-site soil sampling; harborwide sediment characterization and the Phase I Planning Study for the Rayonier Mill Property. If this reappropriation level remains in the adopted budget, we expect to be able to allocate $250,000 towards the Phase II harborwide planning efforts. There is no money allocated to Port Angeles Harbor remediation funding for Harbor- works. This is because there is no public ownership of the Rayonier Mill Site and therefore, no cleanup order or decree between Ecology and Harborworks. Thus, there is no project to put in the queue for funding. If those circumstances change, then we will prioritize funding for that grant, subject to legislative appropriation. , Ms. Betsy Wharton, Deputy Mayor February 9, 2009 Page 5 Thank you for the questions you have asked us. I hope these answers will be helpful in your on- going discussions. It is a challenging task the Port Angeles community is considering taking on. We remain committed to completing the cleanup of the Rayonier Mill Property and other sites in Port Angeles Harbor. We look forward to our continued working relationship in that endeavor. As always, should you have any further questions, please feel free to call me at (360) 407-7177 or Rebecca Lawson at (360)407-6241. Sincerely, <\v--- James J. Pendowski, Manager Toxics Cleanup Program cc Dan DeGuilio, Port Angeles Council Member Gary Braun, Port Angeles Council Member Kent Myers, Port Angeles City Manager Bill Bloor, City Attorney Nathan West, Director of Community Development Orville Campbell, Chairman of the Harborworks Development Authority , (; Southwest Washington Regional Management Team Tom Loranger Water Resources 360 407 6058 Garin Schrieve Water Quality 360407 6271 Rebecca Lawson T oxics Cleanup 360407 6241 Diane Butorac Spill Prevention 360 407 6238 Jim Sachet Spill Response 360407 6328 ,,--:-- -<~ ("f\", f' f .;' f ..1..w..... ' . .... :r;;"'~; , l . r l ~~ Pam Bems Business Administrator 3604076317 Alan Bogner Permit Assistance 360 407 6957 ~-.., ,0' Phyllis Baas Air Quality 360 407 6822 Our mission is to protect, preserve and enhance Washington's environment, and promote the wise management of our air, land and water. IIoba Odum Vancouver Office 3606907170 Sally T oteft , Regional Director 360 407 6307 Kim Schmanke Communications 360 407 6239 Abbe White Assistant , 360 407 6308 Y--~_~ J ~. < ~'- t, . ----~--'~...."..-'1 "Clallam " '\ \. , \ 'Grays Harbor ~.::,"'/' , /' I~ 1__- . ) I ! ~!.b Bob Cusimono Assessment & Studies 360 407 6596 --~" '1 _,-< ' ",' \_,J , __ ,1' ~'~'\',.,'.;I Ava Edmondson Hazardous Waste 360 407 6341 Peter Lyon Solid Waste 360 407 6381 Paula Ehlers Shorelands & Floods 3604070271 CORE SERVICES -Enforcement -Environmental assessment & studies -Environmental education -Grants & loans -Permitting -SEPA/Environmental Review -Site Cleanup -Spill Response and Prevention -Technical Assistance -Watershed Planning Department of Ecology / WWW__e(y.yya.gQV / 360-407-6300