IN THE STATE OF OREGON BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY

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1 IN THE STATE OF OREGON BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY WINKLER DEVELOPMENT CORPORATION, Petitioner, v. FOCUSED REMEDIAL ACTION PLAN, HARBOR OF HOPE NAVIGATION CENTER PETITION FOR RECONSIDERATION OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent. This Petition for Reconsideration is brought pursuant to ORS , and OAR , authorizing appeals of final agency orders in other than contested cases by any person who is adversely affected or aggrieved. As provided in OAR , a person entitled to judicial review of a final order in other than a contested case under ORS may file a petition for reconsideration of that final order with the agency. Petitioner respectfully requests that Oregon Department of Environmental Quality reconsider its approval of the Focused Remedial Action Plan, Harbor of Hope Navigation Center and grant of permission for Oregon Harbor of Hope ( OHOH ) to proceed with site development. Petitioner requests reconsideration because the approval is inconsistent with state laws, regulations, and standards designed to protect human health and the environment and adversely affects Petitioner as provided below. Petitioner retains the right to request judicial review pursuant to ORS Petitioner alleges the following: PARTIES 1. Petitioner Winkler Development Corporation ( WDC ) is an Oregon corporation with its principal place of business located in Multnomah County, Oregon. 1

2 2. Petitioner WDC is a real estate development firm with both commercial and residential holdings. WDC and its principals have been involved in providing affordable housing in the Portland area for over 30 years. 3. Respondent the Oregon Department of Environmental Quality ( DEQ ) is a state agency created under ORS which, in addition to other functions, oversees the protection of public health and environment related to releases of hazardous substances. 4. DEQ s letter of approval to OHOH, dated September 14, 2018, is a final agency order as defined in ORS (6)(b). Pursuant to ORS , a petition for reconsideration of an agency order must be filed within 60 days of the date of the order. Petitioner s Petition for Reconsideration is timely. 5. Petitioner is adversely affected and aggrieved by DEQ s order because the approved remedial action is inconsistent with state law and DEQ regulations and standards, which allows an unequal and unfair advantage to OHOH that directly undermines the level playing field and standards established to protect public health and the environment that have been imposed on other developers. Petitioner is also adversely affected by DEQ s order because Petitioner was denied the opportunity (guaranteed under DEQ rules) to comment on (and to request and participate in a public meeting regarding) the proposed remedial action before it became final. BACKGROUND 6. The Union Station-Parcel A North Site (the Site ) is located on the west bank of the Willamette River in Multnomah County, Portland, Oregon. The Site comprises 5 acres 2

3 consisting of two separate lots: Lot 1 and Lot 2. The Site was primarily used for railroad purposes for nearly a century. 7. The Site has been subject to numerous environmental investigations. Total Petroleum Hydrocarbons ( TPH ), Polyaromatic hydrocarbons ( PAHs ), lead and arsenic have been detected in the shallow surface soils (surface and black layer to 5 feet below ground surface). As further described in DEQ s June 1998 Record of Decision (the 1998 ROD ), soil at the Site has been determined to have concentrations of TPH, PAHs, lead and arsenic at concentrations sufficiently high to pose a significant risk to public health and the environment. Specifically, the risk posed by carcinogenic PAHs present a risk of 2x10-4 to 4x10-4, significantly greater than the human health risk standard of 1 x10-6. Lead in the shallow soil was determined by DEQ to pose a risk to female site workers of child-bearing age. Arsenic present in the shallow soils was determined to pose a risk greater than the human health risk standard of 1 x TPH was detected at 8,200 parts per million (ppm), more than 7 times DEQ s current human health risk standard for residential use. See Record of Decision, Selected Remedial Action for Soil at the Union Station-Parcel A North Site, Oregon Department of Environmental Quality (June 1998). 8. The 1998 ROD selected capping and institutional controls as the remedial action. The capping required a demarcation layer (fabric or gravel) covered by a minimum 2-foot thick layer of clean fill. Site buildings and other improvements (paving and/or concrete) could be substituted or used to augment parts of the cover with DEQ review and approval. The 1998 ROD also required a deed restriction to be recorded with the property indicating the location and characteristics of the contaminated soil, describing the required maintenance activities that will be implemented, and providing for notification to DEQ should the property be sold or should use of the property change. See Record of Decision, Selected Remedial Action for Soil at the Union Station-Parcel A North Site, Oregon Department of Environmental Quality (June 1998). 3

4 9. DEQ s 1998 ROD was fully implemented as part of the re-development of Lot 1 for the Oregon State University Food Innovation Center (a non-residential use). As described in the March 2013 Remedial Closure Report, the following remedial actions were completed at Lot 1: Hardscape Area Cap: Concrete areas totaling approximately 18,000 square feet and the building footprint totaling approximately 17,000 square feet. Hardscape consisted of 4-inches of concrete underlain by 4-inches of compacted crushed gravel that is on top of the demarcation layer. Asphalt Pavement Cap: Asphalt parking areas totaling approximately 22,000 square feet. The asphalt cap consists of 3-inches of asphaltic concrete, 8-inches of aggregate base and a demarcation layer. Due to a field construction error, approximately 11,000 square feet did not include the demarcation layer. Landscaping Area Cap: Landscaped areas totaling approximately 13,000 square feet. Removal of 2-feet of contaminated soil, placement of demarcation layer and 2-feet of clean fill. In the tree planting areas, 3-feet of contaminated soils were removed and replaced with 3-feet of clean fill. Approximately 5,500 cubic yards of contaminated soil was hauled offsite for disposal at the Hillsboro Landfill. A deed restriction was recorded with the property deed that identified the nature and extent of contamination remaining and property owner responsibilities regarding monitoring and maintenance of the cap. DEQ approved the closure and subsequently issued a Conditional No Further Action determination for Lot 1. See Letter from DEQ to Colin Polk, Portland Development Corporation RE: Conditional No Further Action Determination (May 2014). 4

5 10. On or about August 29, 2018, OHOH submitted a remedial action plan for Lot 2 of the Site. See Focused Remedial Action Plan, Harbor of Hope Navigation Center, Farallon Consulting (August 29, 2018). Following comments from DEQ, a revised remedial action plan for Lot 2 was submitted on September 14, 2018 (the 2018 RAP ). See Focused Remedial Action Plan, Harbor of Hope Navigation Center, Farallon Consulting (September 14, 2018). Without notice or an opportunity for public comment, DEQ approved the 2018 RAP on the same day. See September 14, 2018 Letter from Dan Hafley to OHOH. The proposed use for Lot 2 would be a residential shelter. GROUNDS FOR RECONSIDERATION 11. The 2018 RAP is not consistent with the permanent remedial action described in the 1998 ROD. Specifically, the 1998 ROD requires excavation of a minimum of 2-foot of contaminated material, the placement of a demarcation layer, 2-foot of clean fill material and a deed restriction (Site buildings and hard-scape can be substituted with DEQ review and approval as a necessary measure to prevent human exposure to contamination in the shallow soil). Contrary to the 1998 ROD, the 2018 RAP allows OHOH to install 1-foot of clean-fill in the non-paved areas that will be utilized by the Navigation Center. The 2018 RAP fails to address other portions of Lot 2 not directly utilized by the Navigation Center (but accessible by residents and visitors) and fails to present any plan for ensuring that employees and residents of the Navigation Center do not come into contact with the shallow contamination on the unused portion of Lot 2. The 2018 RAP erroneously relies upon the prior exposure assessments completed in 1998, does not require confirmation sampling to assess current risk and does not reevaluate the risks to potential residential occupants of the Site. Accordingly, the 2018 RAP fails to follow measures already deemed necessary in the ROD to protect human health. The requirements in the 2018 RAP are also not consistent with other remedial actions required by 5

6 DEQ to re-develop, for residential uses, similar properties with similar contamination along the South Waterfront. DEQ s approval of the 2018 RAP without requiring similar remedial action, and without providing clear justification for the divergent action, is arbitrary and capricious and inconsistent with DEQ s regulations. Finally, DEQ did not seek public comment on the 2018 RAP. DEQ s approval of the 2018 RAP constituted an amendment to the 1998 ROD requiring public comment. See OAR Further, given the passage of time and significant changes in human health risk-based standards to exposure to contaminants, DEQ should have provided notice and an opportunity for public comment on both the 2018 RAP and amendment to the 1998 ROD. 12. I. The 2018 RAP provides for a temporary cap, which is inconsistent with the permanent cap required by the 1998 ROD. The 1998 ROD requires a permanent cap; it does not allow a temporary cap as an acceptable remedial action. OHOH s proposed 1-foot temporary cap will not adequately protect public health and OHOH has failed to present any additional evidence that a 1-foot temporary cap is either sufficient or consistent with the 1998 ROD. Further, there is uncertainty surrounding the operational lifespan of the Navigation Center. While the 2018 RAP suggests the Navigation Center is scheduled to be operated for a period of no more than 5 years, the 2018 RAP states that the Navigation Center may be operated for more than 5 years. See 2018 RAP p Lot 1 was developed for commercial purposes and fully implemented the requirements of the 1998 ROD. Lot 2 will now be developed for residential uses but is not being held to the same standard. Contrary to OHOH s arguments, five years of use is not temporary and OHOH s admits the use could continue well past five years. Further, there may be long-term occupancy for some of the residents. Similar to the requirements imposed by DEQ on residential re-developments in the Portland metropolitan area, DEQ should ensure that the 6

7 residents of the Navigation Center are protected and safe. Rather than relying upon outdated information, the risk to residential tenants (and employees) from exposure to the contamination needs to be fully evaluated applying conservative factors and assumptions. The 2018 RAP fails to provide any such assessment. 14. For other residential re-developments such as along the South Waterfront and other urban developments in close proximity to the Willamette River, DEQ has consistently required, in addition to other measures, that at least 2-feet of contaminated soil be removed and replaced with clean fill in order to adequately protect residential receptors from contamination in soil. See Technical Memorandum prepared by Geosyntec attached hereto. The residents at the Navigation Center are entitled to the same level of protection and DEQ should not allow OHOH to cut corners where human health is concerned. 15. At a minimum, DEQ should withdraw its September 14, 2018 approval and require OHOH to submit a remedial action plan consistent with the 1998 ROD including removing an additional foot of contaminated soil in the unpaved areas and placing an additional foot of clean fill. 16. II. The extent of the capping approved by DEQ is not sufficient to protect public health and the environment. DEQ s regulations require that, [a]ny removal or remedial action address a release or threat of release of hazardous substances in a manner that assures protection of present and future public health, safety, and welfare, and the environment. OAR Here, DEQ approved a remedial action plan that addresses only a portion of the contamination known to be present on Lot 2. The 2018 RAP states, Development or implantation of a 7

8 temporary protective cap beyond the footprint of the Navigation Center as shown in the design plan set is not planned at this time RAP p Residents of the Navigation Center as well as other potential users (e.g., visitors, staff, maintenance workers, etc.) will have access to undeveloped and contaminated areas of Lot 2 where they could be exposed to the contaminants. See Figure 2, 2018 RAP. 18. As noted above, DEQ s 1998 ROD was fully implemented as part of the re-development of Lot 1 for the Oregon State University Food Innovation Center (a non-residential use). Residential uses require greater, not less, protective measures. 19. To ensure the health of the residents and users of the Site are fully protected, DEQ should withdraw its September 14, 2018 approval and require OHOH to submit a remedial action plan for the entire Site consistent with the 1998 ROD. 20. III. The 2018 RAP contains no analysis, is merely conclusory, and is, therefore, deficient. The 2018 RAP erroneously and exclusively relies on the 1998 ROD for its exposure assessment, an assessment that is now twenty years old. Under Section 2.2 of the 2018 RAP, OHOH describes Investigation Activities RAP, p This section references the Site investigations performed in the late 1990s and does not list any additional investigative activities performed in preparation for the OHOH Navigation Center development. OHOH did not review the exposure limits applied in 1998 to see if anything has changed (or if new contamination has been deposited) in the last 20 years. Site conditions may have changed increasing the risk to potential residents and users. Further investigative analysis and determination of current exposure risk is required to ensure protection of Site residents and users. 8

9 21. ORS requires that any removal or remedial action attain a degree of cleanup of the hazardous substances and control of further release of hazardous substances that assures protection of present and future public health, safety and welfare and the environment. Since 1998, DEQ has amended the human health risk standards for residential uses. DEQ has also developed Hot Spot and Vapor Intrusion guidance. To ensure the health of the residents and users of the Site are fully protected, DEQ should withdraw its September 14, 2018 approval and require OHOH to complete additional investigation and assess current risk to the residents and potential users of the Site based on actual/current Site conditions and current regulatory standards/guidance. 22. IV. DEQ s failure to apply its own regulations in an equal manner undermines the level playing field and violates the Oregon and U.S. Constitutions. DEQ s regulations are intended to set environmental standards applicable to the public including developers of contaminated property. These standards, in turn, dictate the actions all developers are expected (and required) to take to protect human health which, in turn, establishes a level playing field. Petitioner is harmed in the present case because DEQ s failure to strictly apply its regulations (including the 1998 ROD, cleanup regulations, and public notice and comment) to OHOH gives an unfair advantage not provided to Petitioner and other developers. This violates Petitioner s rights under the Oregon Constitution Equal Privileges and Immunities Clause, Or Const, Art I, 20, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See, e.g., Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004); David Hill Dev., LLC v. City of Forest Grove, Case No. 3:08-cv- 266AC, 2012 WL (D. Or. Oct. 30, 2012). 9

10 23. V. DEQ did not provide an opportunity for written comment or hold a public meeting, denying interested parties their statutory right to be heard before approving the 2018 RAP. DEQ approved the 2018 RAP and granted OHOH permission to proceed with site development work without first providing notice and opportunity for public comment regarding OHOH s proposed remedial action plan. 24. Outside of the emergency removal or remediation situations provided for in ORS , Oregon law requires that DEQ provide an opportunity for public comment before the agency approves a remedial action plan. ORS Specifically, DEQ must [p]rovide at least 30 days for submission of written comments regarding the proposed action, and consider any comments before approving the remedial action. Id. Additionally, OAR (2)(a) requires that DEQ provide an opportunity for comment and a public meeting regarding the proposed remedial action. 25. DEQ should have provided notice and an opportunity for public comment or a public meeting regarding the 2018 RAP before approving it. REQUEST FOR RECONSIDERATION 26. For the reasons set forth herein and pursuant to ORS and , Petitioner respectfully requests that DEQ rescind its approval of the 2018 Remedial Action Plan and require OHOH to complete the following: conduct further investigative analysis and assess current risks to ensure that health of residents, employees, visitors and users of the Navigation Center are fully protected; and 10

11 submit a revised Remedial Action Plan that requires a permanent cap over the entire Site as required by the 1998 ROD. Following submittal of a revised Remedial Action Plan, DEQ should solicit public comment. DATED: October 19, 2018 PERKINS COIE LLP By: ~ 2 )l,.,d_ ~~ Hunter, OSB No JHunter@perkinscoie.com 1120 N.W. Couch Street, Tenth Floor Portland, OR Telephone: Facsimile: Attorney for Petitioner 11

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17 CERTIFICATE OF SERVICE. I hereby certify that on October 19, 2018, I served the foregoing PETITION FOR RECONSIDERATION on: Oregon Harbor of Hope 222 SW Columbia Street, Suite 700 Portland, Oregon Paul Seidel, Cleanup and Site Assessment Manager Department of Environmental Quality Northwest Region 700 NE Multnomah St, Suite 600 Portland, OR Mr. Richard Whitman, Director Department of Environmental Quality 700 NE Multnomah Street, Suite 600 Portland, OR Gary Vrooman Oregon Department of Justice 1162 Court St NE Salem, OR to be sent by the following indicated method or methods, on the date set forth below: by X by mail DATED: October 19, 2018 PERKINS COIE LLP ~ :J. JJ,_,(L By: ~ - Hunter, OSB No J Hu nter@perkinscoie.com 1120 N.W. Couch Street, Tenth Floor Portland, OR Telephone: Facsimile: Attorney for Petitioner S/LEGAL