Re: T-117 Upland Draft Removal Action Plan, Lower Duwamish River Superfund Site

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1 Duwamish River Cleanup Coalition Community Coalition for Environmental Justice The Duwamish Tribe Georgetown Community Council Environmental Coalition of South Seattle (ECOSS) IM-A-PAL Foundation People for Puget Sound Puget Soundkeeper Alliance South Park Neighborhood Association Washington Toxics Coalition Waste Action Project May 25, 2006 Mr. Ravi Sanga U.S. EPA Region X Sanga.Ravi@epamail.epa.gov Re: T-117 Upland Draft Removal Action Plan, Lower Duwamish River Superfund Site Dear Mr. Sanga: The Duwamish River Cleanup Coalition (DRCC) is EPA s Community Advisory Group for the Duwamish River Superfund Site. DRCC represents ten organizations affected by the health of the Duwamish River and plans for the river cleanup, including the South Park Neighborhood Association, the South Park-based Environmental Coalition of South Seattle (ECOSS) and IM-A-PAL Foundation, the Georgetown Community Council, the Duwamish Tribe and five regional environmental, social justice and health advocacy organizations. DRCC s members and partners hold the State of Washington Public Participation Grant for the Duwamish River Superfund Cleanup and EPA s Technical Assistance Grant for the site, which provides funding for technical experts for the community. DRCC has reviewed the T-117 Upland Draft Removal Action Plan (RAP). Our concerns remain very similar to those outlined in our comments on the Port of Seattle s April 2006 Removal Action Technical Memo, and many of our conclusions remain the same. The RAP does not set adequate cleanup levels to protect human health under a wide range of reasonably anticipated future uses of the site, including redeveloped commercial, residential or recreational uses even new industrial uses that would require new construction or other breach of the cap are precluded by this action; The RAP does not set adequate levels to guarantee protection of the environment or provide for reasonable confidence that chemicals left on site will not recontaminate the Duwamish River; The RAP does not meet the minimum standards of our state s Model Toxic Control Act for final cleanup actions, which must be considered as ARARs applicable or relevant and appropriate requirements and the site will remain on the state s contaminated sites list even after the cleanup; The RAP leaves the property in a condition only usable as a highly restricted industrial site and likely in need of additional future cleanup this is poor

2 environmental and community planning, is contrary to the South Park Neighborhood Plan and City of Seattle Comprehensive Plan, and is an irresponsible use of the public s investment of $6 million; The RAP states that work must be conducted during the dry season, yet sets a removal schedule outside of the dry season and which can be reasonably expected to be delayed by normal seasonable rains (September and October); Despite the high likelihood of weather-related delays, the RAP relies on the timecritical nature of the cleanup to justify restricting the scope of cleanup and otherwise mandated opportunities for public review; The RAP exposure pathways and site model are not comprehensive and do not provide adequate protection of the environment or human health. The RAP excavation plan is inadequate, incomplete and, in places, internally inconsistent with regard to the removal of contamination and debris. DRCC makes the following recommendations to correct the deficiencies of the RAP: 1. Set protective cleanup levels for all reasonably anticipated future uses. 2. Comply with all relevant and applicable state and local cleanup requirements. 3. Ensure that cleanup levels provide for protection of human health and the environment and prevent recontamination of the Duwamish River. 4. Remove the highest areas of PCB concentrations in an emergency action that can be completed during the dry season (July and August 2006); defer a sitewide comprehensive upland cleanup with full public review to A detailed discussion of each of these conclusions and recommendations follows. CONCLUSIONS The RAP does not set adequate cleanup levels to protect human health under a wide range of reasonably anticipated future uses of the site, including redeveloped commercial, residential or recreational uses even new industrial uses that would require new construction or other breach of the cap are precluded by this action. EPA must consider all reasonably anticipated future uses of the T-117 property. The RAP assumes this site will be used as an industrial site in perpetuity, with little exposure to workers, neighbors, fishers, recreational users or fish and wildlife. This assumption is based on current King County zoning and ignores plans by the City of Seattle to annex this property in the near future. The City Comprehensive Plan, which includes the South Park Neighborhood Plan, anticipates a pedestrian-oriented commercial zone for the

3 annexed properties, including T-117. The RAP cleanup level relies on assumptions that are contrary to the City Comprehensive Plan, do not meet the requirement to consider all reasonably anticipated future uses, and must be revised. The proposed cleanup level of 25 ppm PCBs will require prohibitions on any disturbances to the asphalt cap in order to prevent exposure to toxic materials left on site and to protect human health. Therefore no redevelopment, new construction, or physical improvements to the property that would disturb the cap would be allowed. Use will be limited to highly restricted industrial (likely parking and storage, based on the current property configuration), with no opportunities for more productive economic use. The Port has provided no economic assessment of the cost of this property s continued maintenance using public funds, or of what the Port of Seattle can expect in income from leasing restricted industrial parking and storage, as compared to the value of the site as a clean riverfront property. When the Duwamish River Superfund cleanup is complete, and the Boeing property across the river has been restored as a greenbelt, it is likely that Terminal 117 would be prime waterfront real estate, except that it will still be a restricted toxic wasteland unfit for redevelopment or more productive use. The Port s plan limits it s own ability to maximize profits from this site from tenants or eventual sale, which is not in the best interests of the taxpayers it serves. Either the anticipated rezoning of the site by the City of Seattle or desire for a more productive economic use of the property by the Port may also require yet a third cleanup at T-117, at far greater cost than is possible by completing a comprehensive cleanup now. The RAP does not set adequate levels to guarantee protection of the environment or provide for reasonable confidence that chemicals left on site will not recontaminate the Duwamish River; The Washington State Department of Ecology has not concurred that the proposed plan protects the river from chemicals to be left on site. They state that they "dont know" if the plan will protect the river. Ecology has specifically rejected TPH cleanup levels above 2,000 ppm at other cleanup sites. The state s cleanup levels for PCBs are 1 ppm in residential areas and 10 ppm in industrial areas, TPH cleanup levels under state regulations are 2,000 ppm. The RAP further does provide confirmation that the TPH concentrations found on site are comprised exclusively of the less toxic oils (diesels and mineral oils) that require cleanup to 2,000 ppm. If the oils also include more toxic oils, such as gasoline, a more protective cleanup level of 200 ppm or 100 ppm may be required. The RAP needs to provide data to document what kind of TPH has been found on site. The cleanup of the T-117 property must provide reasonable assurances that contaminants left on site will not recontaminate the Duwamish River. Monitoring, while an important safeguard for any cleanup plan, does not replace cleanup and source control it simply alerts us to when we ve gone wrong. The cleanup action itself must be designed to protect the river, not to maybe be enough. This cleanup must meet the Department of Ecology s guidelines for effective source control and provide reasonable assurances that

4 the Port of Seattle will not have to return to the site yet again to clean up the remaining contaminants it left behind. The RAP does not meet the minimum standards of our state s Model Toxic Control Act for final cleanup actions, which must be considered as ARARs applicable or relevant and appropriate requirements and the site will remain on the state s contaminated sites list even after the cleanup; The RAP proposes a cleanup level that does not meet the minimum requirements under Washington State s toxic cleanup laws. The cleanup level of 25 ppm does not meet MTCA standards for a final cleanup action, which EPA intends this cleanup to be (the MTCA cleanup level for industrial sites is 10 ppm for PCBs and 2,000 ppm for TPH; for recreational or unrestricted use the MTCA cleanup level is 1 ppm for PCBs). Under Washington State law, Ecology states that the plan is akin to an "interim" rather than a final cleanup action, yet EPA plans no follow up or completion of this cleanup. The RAP s proposal of a 25 ppm cleanup of PCBs and 4,000 ppm TPH is intended to be final. EPA has also provided no regulatory authority that permits it to waive or otherwise preempt state laws. To the contrary, Superfund requires that cleanups meet all ARARs applicable or relevant and appropriate requirements of state and local environmental laws. EPA further proposes to apply a less restrictive standard than the best permitted under federal law (10-5 rather than 10-6 risk) resulting in a ten-fold higher cancer risk. Coupled with the violation of state toxic cleanup laws, this is completely unacceptable. The South Park community should be afforded the full protections available to them under both state and federal cleanup laws. As a low-income, ethnically and linguistically diverse neighborhood, EPA should consult with its Environmental Justice office regarding the community s rights to full protection under state and federal laws and to ensure that this cleanup decision does not result in disparate environmental and health impacts in this community as compared with more affluent and Caucasian Seattle neighborhoods. A common question in South Park today is: Would EPA do this in Greenlake or Laurelhurst? It is doubtful that they would. The RAP leaves the property in a condition only usable as a highly restricted industrial site and likely in need of additional future cleanup this is poor environmental and community planning, is contrary to the South Park Neighborhood Plan and City of Seattle Comprehensive Plan, and is an irresponsible use of the public s investment of $6 million; This issue is adequately addressed by our comments on the previous three sections. The Port must come back to the community with a better cleanup plan that recognizes the current and potential future uses of the site as outlined above, sets cleanup levels accordingly, and uses those levels to drive a comprehensive and final remedial action. To do otherwise is a waste of taxpayer dollars and blatantly disregards the health and welfare

5 of the South Park community, the City s long term planning for this neighborhood, and the surrounding environment. Despite the high likelihood of weather-related delays, the RAP relies on the timecritical nature of the cleanup to justify restricting the scope of cleanup and otherwise mandated opportunities for public review; The success of the cleanup plan depends on having an unseasonably dry fall. The removal work is scheduled for September and October, and needs dry weather to complete. The plan allows for delaying and even shortcutting parts of the cleanup if the weather patterns prevent allowing cleanup to proceed. The RAP needs to be revised to provide for any necessary emergency removal action to be done immediately and during the actual dry season, which ends in August. September and October are 2x 3x wetter than July and August, according to weather almanacs for Seattle. We cannot afford any more shortcuts or unplanned delays. Our recommendations lay out a reasonable and feasible schedule for completing an emergency action for the highest PCB concentrations this year, while allowing for development of a comprehensive and final upland, bank and sediment cleanup in Exposure pathways and site model are incomplete and do not protect the community or fish and wildlife that use the site and adjacent areas. The exposure pathways used in this RAP are not comprehensive. In order to evaluate the most appropriate remedial action, exposure pathways cannot be overlooked, even if they are infrequent or based on potential future site conditions. The RAP needs to consider the following exposure pathways: direct soil contact and ingestion by animals on site there needs to be an analysis of receptors of concern, including fish and wildlife on and adjacent to the site; direct contact from recreational users of the shoreline; expand the soil erosion scenario to explicitly include transport to adjacent shorelines and reference the subsequent exposure pathways once eroded soils are in the river; direct contact with biota from seeps or from groundwater flowing into the river. Expanding the future land use scenarios would also result in more exposure pathways all of which must be analyzed. EPA and the Port have been advised that zoning and land use for this property are likely to change. As written, the site model is completely inadequate due to the problems discussed in our comments regarding the Removal Action Technical Memo: land use assumptions are faulty; incomplete source data; assumptions about PCB and TPH transport; and incomplete exposure pathways and receptors. A new site model that reflects the full

6 range of likely and potential scenarios of how people, fish and wildlife are and may be exposed to contaminants at the site must be developed. At present, the conceptual site model excludes risks to children of recreational users of the resource. This omission results in much greater acceptable risks because children are more sensitive to the effects of PCBs. This same omission extends to fetal exposures. There is no mention of cumulative risks in the conceptual site model. EPA has been developing procedures for assessing cumulative risks, especially for communities and ecosystems that are vulnerable due to poverty, existing degradation, inadequate medical services, etc. EPA has a framework document for cumulative risk and a series of reports on issues related to cumulative risks. These reports would provide the guidance on assessing such cumulative risks in the area of T-117. The RAP excavation plan is inadequate, incomplete and, in places, internally inconsistent with regard to the removal of contamination and debris. The RAP describes three underground storage tanks (USTs) that were closed in place and are now located beneath the small building just south of the north gate (page 2-2, section 2.2 and page 7-6, section 7.4.3, bullet 4). These USTs are a potential problem and source of oils, TPH and even PCBs. The closure report must be examined in detail to confirm that the closure was properly conducted. Considering that the previous remedial action on this site was inadequate, and site operations caused the contamination in the first place, there is every reason to question the adequacy of the closure and every reason to suspect there may be a remaining problem with these USTs. The RAB should plan on removing the three USTs. In addition, the previous sampling (T-117 Upland Soil Investigation, Draft Field Sampling and Data Report, March 22, 2006) indicates limited soil sampling in the down-gradient vicinity of these three USTs. One soil boring was taken (B-7) immediately adjacent to the USTs, one more (SB-37) was taken down gradient from the first, and a third (D-4) was taken in a different direction. Two of the three sites had elevated PCB s. More soil sampling to a depth four feet below the bottom of the USTs needs to be completed before this investigation can be considered completed. In addition to the USTs, any and all other structures remaining buried on the site, including all pipes, conduits, tanks, etc., should be removed during excavation. The excavation plan is entirely inadequate for removing PCBs at depths and throughout the site. We have already noted the problems with leaving in place any soils with PCBs over 1 ppm, and the state regulations requiring removal. The problems extend to the plan to remove only soils above 10 ppm or 25 ppm at depth and leave in place soils in the bottom of the excavation pits that exceed 1 ppm. The present plan will leave in place soils in the bottom of excavated pits that have elevated levels of PCBs that could be removed, but instead will be left in place. An illustration of this is at sample location PS- 3 (Map 4.2 in folio, figure 7-1, table 7-2, table 7-3). The RAP calls for removal of the top 3.5 feet (Figure 7-1), leaving in place the 5.5 feet of deeper soils that are > 1 ppm PCBs.

7 Furthermore, it is not clear if the excavation at PS-3 will remove the entire sampling stratum that had PCBs of 19 ppm because there is a discrepancy between the excavation depths shown in figure 7-1 and table 7-2. The sampling of soils at depth does not reach clean soils in all cases. It is true that at many sampling sites, the deepest samples have < 1.0 ppm PCBs. But there are also many sample sites where the deepest sample still shows PCBs > 1.0 ppm. These sites include the following: SB-11, SB-12, SB-13, SB-14, PS-1, PS-2, PS-3, B-6, B-8, SB-7, SB-8, SB-9, SB-10, SB-22, SB-31, SB-34, SB-39, SB-50, SB-51, SB-52, PS- 5, PS-6, PS-7, T , T , SB-A1, SB-A2, SB-B3, SB-C4, SB-E1, SG-B1, SG-B4,, SG-F4, D-11, SB-UC, SB-UE, E-1, E-3, F-4, PD-4, PD-5, DS-1, DS-2, The problem is that the excavation is based on incomplete knowledge of the depth and distribution of contamination. At site SB-12 the foot surface stratum has PCBs of 37 ppm, yet the excavation calls for only digging down 1.5 feet (Table 7-2). At PS-7, the deepest sample at ft is 110 ppm PCBs and there is no plan to dig or sample beyond 9.0 ft (Table 7-2) or perhaps 9.5 ft (Figure 7-1) the excavation depths described in the RAP are inconsistent between Table 7-2 and Figure 7-1. Excavations need to remove more than the minimum layer of soil the site must be overexcavated to ensure full removal. The RAP calls for excavating soil to the depth at which soil contamination exceeds the action levels. In a very few cases, the excavation may be planned for 0.5 feet beyond the stratum of contamination, but it is unclear because the information in Table 7-2 and Figure 7-1 are inconsistent. Notwithstanding the problem we have with the action levels being too high, the RAP needs to address the excavation strategy. The removal action needs to take soil down to the lower limit of the stratum where the measurement was made, and then over-excavate by margin of one or two feet. Thus, if a sample at depth feet exceeded the action level, then the removal should be to 4 feet plus an overexcavation layer, for a total of 5-6 feet. The same is true for sidewall excavations. The overexcavation requirements need to be determined before the excavation begins. The RAP oversimplifies and overstates the knowledge of contamination and its distribution on the site (Page 3-1, section 3.1). There are several sample areas where too few data exist for a depth distribution pattern and in more than one sample area the contamination is high in the deepest sample. The plan to use visual observations of oil in samples as a criterion for removal (page 3-2, section 3.1.3) has some merit but is also highly subjective. The visual observations are but one piece of information and soil data are required in more cases than currently exist. Confirmation sampling will be described in detail in subsequent documents, but the strategy must be described here. Confirmation samples must be collected on each side wall and on the bottom of the excavation, and large excavations and large sidewalls require more than a single sample.

8 Additional issues regarding removal plan The risk-based evaluation (page 1-1, bullet 2) needs to be accurate and complete in order to be at all useful. We object to using a 10 5 cancer risk, instead of the more widely used 10 6 basis that is used throughout the state. The risk basis is nearly invisible in this document, giving no indication of the non-cancer estimates, the exposures estimates or effects (hazard) assessment. A risk-based method also requires a characterization of the risk. The risks to biota (wildlife, fish, birds, etc.) are not mentioned and the conceptual site model includes only a limited exposure pathway description for biota. The RAP states that the removal action is based on a risk analysis (page 1-3, paragraph 3), yet there is no evidence of such. A risk-based approach would have all the elements of risk analysis, exposure and hazard analyses, dose-response characterization and risk characterization. Only the exposure analysis is discussed, and only sparingly. The 25 ppm is not risk-based at all, but appears to be based on some other criteria, such as the cost of cleanup, the convenience of excavation, incomplete assumptions about how the site might be used, or scheduling concerns. But to say that this is a (health and environmental) risk-based decision is simply inaccurate and not supported by the RAP. The RAP has not completely characterized the TPH oils on this site, making the choice of cleanup standards almost arbitrary. The description is of a mixture of oils (page 2-1, section 2.1 paragraph 1) with inclusion of waste mineral oils as one component. Other oils are presumed to be present. State MTCA regulations list several different categories of TPH, and the cleanup standards differ among these types. Unless there is some empirical data to indicate which of the several kinds of oil is present, then the RAP should assume that the oil on site is the most dangerous and clean to the lowest level. RECOMMENDATIONS 1. Set protective cleanup levels for all reasonably anticipated future uses. EPA must set cleanup levels protective of all reasonably anticipated future uses, which includes uses anticipated in the South Park Neighborhood Plan and City of Seattle Comprehensive Plan. These uses are not limited to industrial, which is King County s current zoning for the property. The T-117 site is in the sliver by the river a narrow sliver of unincorporated King County, surrounded by the City of Seattle, and expected to be annexed by the City within the next few years. The Seattle Comprehensive Plan recognizes this and plans for a pedestrian-oriented commercial zone land use for the area that includes T-117. The Seattle City Council has unanimously requested that EPA clean up the site to support the full range of possible land use zoning that it may choose. In addition, a recent DRCC survey of South Park residents confirms the neighborhood s overwhelming support for open space and/or commercial redevelopment or possibly even residential use of the land. EPA cannot base its decision solely on the County s current zoning given this irrefutable evidence of other anticipated and highly likely future uses and knowing that the County s zoning will likely be moot within a few years.

9 2. Comply with all relevant and applicable state and local cleanup requirements. The Washington State Model Toxic Control Act requires soil cleanup levels of 1 ppm PCBs for residential/unrestricted use,10 ppm PCBs for industrial use, and 2,000 ppm TPH if TPH components are limited to diesel and mineral oils (100 or 200 ppm if TPH includes gasoline oils). The Department of Ecology has determined that EPA s cleanup plan is akin to an interim, not a final, cleanup. EPA s RAP, as its final proposed action, therefore fails to meet the requirements of Washington State law. EPA must either strengthen its cleanup levels to comply with Washington State law, or provide the remainder of the cleanup plan and a schedule for completion. A final cleanup action that only meets the requirements of an interim cleanup is not equivalence; it does not meet the requirements of the law. 3. Ensure that cleanup levels provide for protection of human health and the environment and prevent recontamination of the Duwamish River. The proposed cleanup plan does not provide reasonable assurances, let alone a guarantee, that contaminants left on site will not recontaminate the Duwamish River. Given the anticipated future uses of the site, it also does not provide adequate protection of human health under future land use scenarios. Finally, given the possibility of continued releases to the river and the shortcomings of the risk assessment and conceptual site model discussed in our comments, it fails to provide for adequate environmental protection. A cleanup plan that provides these assurances and gains Department of Ecology concurrence regarding source control must be developed for the site. 4. Remove the highest areas of PCB concentrations in an emergency action that can be completed during the dry season (July and August 2006); defer a sitewide comprehensive upland cleanup with full public review to The RAP describes the need to conduct the time critical removal during the dry season in order to facilitate excavation and prevent runoff of contaminated material, but then plans to schedule the work during September and October. Rainfall in September and October is 2 4 times higher than in July and August, which is the dry season in the Seattle/ Puget Sound region (1.78 and 3.47 vs and 1.09 ). DRCC recommends conducting an emergency action for the highest areas of PCB concentrations of 500 ppm and above. This emergency action should be conducted during July and August of this year. A map showing the approximate areas for this emergency removal area is attached. For the rest of the upland contamination, excavation should be scheduled for July and August of 2007, concurrent with removal of the bank and sediments that comprise the rest of the T-117 Early Action Area. The work would be staged to facilitate removal and transport of materials from each area of the site, with their associated transportation needs. The upland excavation conducted in 2007 would be developed with full public participation and review, and would meet the requirements of Washington State MTCA

10 for unrestricted land use, per the anticipated future zoning and uses of the site (1 ppm PCBs and no more than 2,000 ppm TPH). We are also attaching a letter from the Seattle City Council and Washington State Rep. Zach Hudgins, regarding the future land use and Washington State law requirements detailed above. Please feel free to contact me if you have any questions or want to discuss these issues further. Sincerely, BJ Cummings BJ Cummings Coordinator Duwamish River Cleanup Coalition