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4700
ECOLOGY - DEPT OF
(WA STATE)
Agreed Order - Chevron Tank Farm pt Washington Narrows
Engineering
LEG 12-1
11/20/2007
11/01/2017
Remedial Intestigation/Feasibility Study & Interim
Action
Records retention during pendency of order & for 10
years from date of completion of work w/similar
retention for all contracts w/project contractors &
subcontractors
Review date for tracking only
STATE OF WASIDNGTON
DEPARTMENT OF ECOLOGY
CHEVRON TANK FARM PORT
WASHINGTON NARROWS
AGREED ORDER for REMEDIAL
INVESTIGATION/FEASIBILITY STUDY
and INTERIM ACTION - Chevron Tank Farm
Port Washington Narrows
In the Matter of Remedial Action by:
No. DE-07TCPHQ-5024
TO: TIle City of Bremerton
Public Warks Department
3027 Olympus Drive
Bremerton, Washington 98310
TABLE OF CONTENTS
I. IN"TRO DU CTI ON........................................................... ............................ '" ........... ............3
II. JURlSD ICTI ON................................................... ........................................................... .......3
III. PARTIES BOUND.. ............... ..... ........... ....... ...... ................ ......... ............ ......... ........ ........ ....3
IV. DEFINITIONS............................................................................. ............ .............. .... ...........3
V. FINDINGS OF FACT ............... ..... ....... ....... ................... ...... ..... .............. .............. ........ .......4
VI. ECOLOGY DETERMINATIONS. ....... .... ... ....... ..... .... .... ............. ........ ................. ........... ....6
VII. WORK TO BE PERFORMED ..... ............... ............ ..... ...... .............. ............... ... ..... ...... .......8
VIII. TERMS AND CONDITIONS OF ORDER..........................................................................8
A. Public Notice............. ...................................................... ...... .........................................8
B. Remedial Action Costs........................................................... ........ .... ...........................9
C. Implementation of Remedial Action.... ........ ....... ...... ....... ............. .............. ........ ...........9
D. Designated Project Coordinators ....... ................... ......... ............. ....... ............... ...........1 0
E. Performance....................................................... ....... ................... ... .......................... ...1 0
F. Access.................. ............. .....................:.......... ... ......... .... ......... .... .............. ............... .11
G. Sanlpling, Data Submittal, and Availability ..... ................ ......... ..................................12
H. Public Participation............................................................................... ..................... ..12
1. Retention of Records............................................. ........... ........................................ ....14
Agreed Order No. DE-07TCPHQ-5024
Page 2 of21
J. Resolution of Disputes ............................ ............ ........ ............................. ......... ......... ..14
K. Extension of Schedule......................... ......................... .......... ....... ... ........ ........... ......... .15
L. Amendment of Order ............ .................. .... ................................... ....................... ..... ..16
M. Endangerment..... ........... ............................ ........... ................... ......... .......................... .17
N. Reservation of Rights...... ...... .................. ............ ...... ..... ............ ..................................17
O. Transfer of Interest in Property ......... ............... .............. ................................ ......... .... .18
P. Compliance with Applicable Laws ..............................................................................19
Q. Indemnification.......................... .................................... ............. ........ ........................ .20
IX. SATISFACTION OF ORDER.............. ...... ........... .... ...... ......... ................ ..........................20
X. ENFORCEI\1ENT ............................................................................................ ................ ...20
EXHIBIT - A Site Diagram
EXHIBIT - B Scope of Work, Work Plan & Schedule
EXHIBIT --C Applicable, Relevant and Appropriate Requirements
EXHIBIT -D Policy 840 (Data Submittal Requirements)
ATTACHMENT-l June 2005, Due Diligence Investigation
ATTACHMENT-2 Groundwater Monitoring Results (1988 through 2003)
ATTACHMENT -3 March 1994, Supplemental Soil Investigation Resul~s
ATTACl-IMENT--4 November 1991, Soil Vapor Extraction System Results
ATTACHMENT-5 July 1991, Site Hazard Assessment Results
ATIACHMENT-ti March 1989, Soil investigation Results including some Product
Recovery
ATIACHMENT-7 November 1988, Soil and Groundwater Investigation Results
Agreed Order No. DE-07TCPHQ-5024
Page 3 of21
I. INTRODUCTION
The mutual objective of the State of Washington, Department of Ecology (Ecology) and
the City of Bremerton (the City) 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 City to conduct a remedial investigation/feasibility study (RIfFS) to
collect, develop and evaluate sufficient information to develop a [mal cleanup action plan (CAP)
for the Site, and to prepare a draft CAP. In addition, the City is required by this Order to conduct
an appropriate interim action to address the contanrinated soils. Ecology believes the actions
required by this Order are in the public interest.
II. JURISDICTION
Tbis Agreed Order is issued pursuant to the Model Toxics Control Act (MTCA),
RCW 70.105D.050(1).
m. P AR'JIES 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 this Order. The City agrees to. undertake all actions required by the terms and
conditions of this Order. The City 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 70.1 05D RCW and
. Chapter 173-340 WAC shall control the meanings of the terms in this Order.
A. Site: The Site is referred to as Chevron Tank Farm Port Waslrington Narrows and
is generally located at 1310 Highland Avenue in Bremerton, Washington 98310. The Site is
defined by the extent of contamination caused by the release of hazardous substances at the Site.
Based upon factors currently known to Ecology, the Site is more particularly described in
Agreed Order No. DE-07TCPHQ-5024
Page 4 of21
Exhibit A to this Order, which includes a detailed Site diagram and the location map. The Site
constitutes a Facility under RCW 70.1 05D.020( 4).
B. Parties: Refers to the State of Washington, Department of Ecology and the City
of Bremerton.
C. Potentially Liable Person (PLP): Refers to the City of Bremerton.
D. Agreed Order or Order:. Refers to this Order and each of the exhibits to this
Order. All exhibits are integraI' and enforceable parts of this Order. The ternis "Agreed Order"
or "Order" shall include all exhibits to this Order.
V. FINDINGS OF FACT
Ecology makes the following findings of fact, without any express or implied admissions
of such facts by the City:
A. The Chevron Tank Farm Port Washington Narrows site (the "Site") is located at
1310 Highland Avenue, Bremerton, Washington (the "Property") and consists of approximately
1.5-acres. The Property is bounded on the northeast by the Port Washington Narrows, on the
northwest by a small inlet (Smith Cove), on the southeast by a residential area and on the
southwest by a mixed residential and business area. (Exhibit-A). From approximately 1950 until
1988, Chevron operated a bulk storage and distribution center for petroleum products on the
property, including a fuel distribution dock.
B. Currently the City of Bremerton owns the Property and it is a vacant piece of
land. (Exhibit-A).
C. In June 2005, Parametrix conducted a Due Diligence Investigation for the City of
Bremerton to evaluate the then-current conditions at the Site. The evaluation included a
comprehensive summary of site investigation, previous remediation efforts, data gaps, additional
investigations, a number of potential remedial alternatives and recommendations for the
property's acquisition. (Attachment-I).
D. Eighteen groundwater monitoring wells were placed on the site; sixteen remain.
From October 1988 to October 2003, a total of thirty-one rounds of quarterly, semiannual and/or
annual groundwater sampling have been conducted at the site. All of these groundwater samples
Agreed Order No. DE-07TCPHQ-5024
Page 5 of21
were analyzed for total petroleum hydrocarbons-gasoline (TPH-G), TPH-diese1 (TPH-D), TPH-
Oil (TPH-O), benzene, ethylebenzene, toluene, xylenes (BETX) and dissolved lead. Results of
the latest round of groundwater sanlpling (October 2003) showed elevated concentrations of
TPH-G (9,000 ug/l), TPH-D (32,000 ugll), TPH-O (5,200 ugll) and benzene (700 ugll). These
concentrations exceed MTCA Method-A cleanup levels of 800 ugll (TPH-G), 500 ug/l (TPH-D
and TPH-O) and 5 ug/l (benzene). (Attachment-2).
E. In March 1994, Chevron Company conducted a Supplemental Site Assessment.
As a part of tills investigation, nine soil borings were drilled and six borings were converted into
groundwater monitoring wells. A total of thirteen soil samples were selected and sent to an off-
site laboratory for TPH-G, TPH-D, TPH-O, polycyclic aromatic hydrocarbon (PAHs) and total
lead analysis. Some of the soil samples showed elevated concentrations of TPH-G (1,300
mg/kg), TPH-D (11,000 mglkg) and P AH range of 1.2 mg/kg to 24 mgllcg. These concentrations
exceed MICA Method-A cleanup levels of 100 mg/kg, 2,000 mglkg and 0.1 mglkg (prorated to
benzo(a)pyrene with toxicity equivalent factors). (Attachment-3).
F. In November of 1991, Hart Crowser (Chevron's consultant) installed a soil vapor
extraction (SVE) system to remove the volatile organic compounds (VOCs) from the soils. The
. system included eleven dedicated e:x.1:raction wells and five groundwater monitoring wells. The.
SVE system was operated from November 1991 through December 1994. Because of the low
VOC recovery the system was turned off in December 1994. During tlUs period a total of
approximately 195,000 pounds of VOCs were extracted and the thickness of product was
reduced in some of the groundwater monitoring wells. (Attachment-4).
G. In July 1991, Ecology conducted a site hazard assessment investigation. As a part
of this investigation groundwater, sediment and shellfish samples were collected. These samples
were analyzed for TPH-G, TPH-D, BIEX, semivolatile organic compounds (SVOCs) and total
lead. Groundwater results showed: total TPH (5,660 ugll), benzene (2,420 ugll), toluene (4,390
ugll) and nitrobenzene (152 ug/l). Results of sediment samples (all compounds) were below
their practical quantitation limits (PQL). Since PQLs were rugher than the Sediment
Management Standards, it does not preclude the presence of these compounds in the sediments
Agreed Order No. DE-07TCPHQ-5024
Page 6 of21
exceeding the marine Sediment Management Standards. In addition, total TPH (100 mglkg -
412 mglkg), xylene (78 ug/kg - 103 ug/kg) and lead (11.3 mg/kg - 53.3 mg/kg) were also
detected in sediment samples. (Attachment-5).
H. In May 1989, Chevron conducted soil investigation and Phase-I remediation
(some product removal). Nine test pits were excavated and a total of eighteen (18) soil samples
were collected for TPH-G, TPH-D and total hydrocarbon identification (HCID) analysis.
Elevated levels of TPH-G (25,000 mg/kg) and TPH-D (5,800 mg/kg) were detected in soil
samples. In addition, measurement of free phase hydrocarbon thickness revealed the presence of
approximately 3 to 4 feet of free product at certain locations on the site. A total of 47 gallons of
free product was removed during a period of one year. (Attachment-6).
1. In November 1988, Chevron conducted a soil and groundwater investigation. As
a part oftbis investigation;twelve (12) exploratory borings and seven (7) test pits were installed
and a total of seventeen (17) soil samples were collected for TPH-G, TPH-D and BTEX analysis.
Elevated levels ofTPH-G (4,300 mg/kg), TPH-D (17,000 mg/kg), benzene (3.4 mg/kg), toluene
(15 mg/kg), ethylbenzene (3.1 mg/kg) and xylenes (12.4 mg/kg) were detected exceeding their
MTCA Method-A cleanup levels of respectively, 30 mglkg, 2,000 mg.kg, 0.03 mglkg, 7 mg/kg,
6 mg/kg and 9 mglkg. (Attachment-7).
Nine of the above-mentioned twelve borings were converted into groundwater
monitoring wells and groundwater samples were collected for total petroleum hydrocarbon
(TPH) and BTEX analysis. TPH, BTEX concentrations of 1,742 ug/l, 6100 ug/l, 19,000 ug/l,
2900 ug/l and 23,000 ug/l were detected respectively. These concentrations exceed MTCA
Method-A cleanup levels of 800 ugll (TPH), 5 ug/l (benzene), 1000 ugll (toluene and xylenes)
and 700 ug/l (ethylbenzene) (Attachment-7).
VI. ECOLOGY DETERMINATIONS
A. The City is an "owner or operator" as defined in RCW 70.1 05D.020(12), of a
"facility" as defined in RCW 70.105D.020(4) because it is the current owner of the Site.
Agreed Order No. DE-07TCPHQ-5024
Page 7 of 21
B. Based upon all factors known to Ecology, a "release" or "threatened release" of
"hazardous substance(s)" as defined in RCW 70.105D.020(20) and RCW 70.105D.020(7),
respectively, has occurred at the Site.
C. Based upon credible evidence, Ecology issued a PLP status letter to the City dated
October 25, 2006, pursuant to RCW 70.105D.040, -.020(16) and WAC 173-340-500. By letter
dated October 27, 2006, the City voluntarily waived its rights to notice and comment and
accepted Ecology's determination that the City is a PLP under RCW 70.105D.040. Ecology
notified the City of this determination by letter dated October 31,2006.
D. 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 that conducting the remedial investigation/feasibility study,
interim action and development of a draft cleanup action plan (CAP) required by this Order is in
the public interest.
E. Under WAC 173-340-430, an interim action IS a remedial action that is
technically necessary to reduce a threat to human health or the environment by eliminating or
substantially reducing one or more pathways for exposure to a hazardous substance, that corrects
a problem that may become substantially worse or cost substantially more to address if the
remedial action is delayed, or that is needed to provide for completion of a site hazard
assessment, remedial investigation/feasibility study or design of a cleanup action. The presence
at the Site of significant concentrations of gasoline, diesel and oil in soil and groundwater
immediately adjacent to Port of Washington Narrows presents circumstances which warrant an
interim action consistent with WAC 173-340-430. The interim action will consist of removal of
petroleum hydrocarbon (TPH) source(s). This includes the excavation of TPH contaminated
soils and/or removal of any product presents at the site, chemical oxidation, and enhanced
bioremediation. More details regarding the interim action are discussed in the RIlFS work plan
(Exhibit B, Section 3)
Agreed Order No. DE-07TCPHQ-5024
Page 8 of21
VII. WORK TO BE PERFORMED
Based on the Findings of Fact and Ecology Determinations, it is hereby ordered that the
City conduct the following remedial actions at the Site and that these actions be conducted in
accordance with Chapter 1 73-340 WAC unless otherwise specifically provided for herein:
A. The City shall conduct the remedial actions fully described in Exhibit B to this
Agreed Order. Generally, the City shall develop a draft cleanup action plan (DCAP) for the Site
and, prior to developing the DCAP, conduct a remedial investigation/feasibility study and
interim action including, but not limited to, the following tasks:
· Installing two new groundwater monitoring wells;
· Collecting groundwater and soil samples to defme the full nature and extent of
contamination;
· Performing a chemical oxidation pilot scale study;
· Performing an interim action to remove contaminated soils and/or any product
identified by the remedial investigation, chemical oxidation for the treatment/reduction
of the other source areas, and enhanced bioremediation;
. Evaluating remedial alternatives;
· Identifying the preferred remedial alternative for the site;
B. Upon the approval of the final RIfFS report, the City shall prepare a draft CAP in
accordance with WAC 173-340-380 that provides a proposed remedial action to address the
contamination at the site. In addition to a general description of the proposed remedial action,
the DCAP shall describe the results of contaminated soils excavation, the chemical oxidation
pilot scale study, the application of enhanced bioremediation technologies, and studies of natural
attenuation of residual groundwater contamination. The DCAP shall also include: cleanup levels
from the RI/FS together with the rationale for their selection; a schedule for implementation;
description of any institutional controls proposed; and summary of applicable local, state and
federal laws pertinent to the proposed cleanup action.
C. The City shall perform actions required by this Order according to the schedule
included in Exhibit B.
Agreed Order No. DE-07TCPHQ-5024
Page 9 of21
D. 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 deIiverables required by
Exhibit B, Ecology may complete and issue the final deliverable.
E. Should significant additional work be necessary based on information obtained
during the remedial investigation and/or new information that was not known at the time of the
preparation of this Agreed Order, a supplemental work plan shall be submitted to Ecology for
review and approval according to an agreed schedule, including an agreed revised schedule for
submission of the resulting RIfFS report.
VIII. TERMS AND CONDITIONS OF ORDER
A. Public Notice
RCW 70.1 05D.030(2)(a) requires 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 City shall pay to Ecology costs incurred by Ecology pursuant to tIus 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
Order preparation, negotiation, oversight, and administration. These costs shall include work
performed both prior (retroactive to October 1, 2006) to and subsequent to the issuance of tIus
Order. Ecology's costs shall include costs of direct activities and support costs of direct
activities as defined in WAC 173-340-550(2). The City 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 ,vithin ninety (90) days of receipt of the itemized statement
Agreed Order No. DE-07TCPHQ-5024
Page 10 of21
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 (direct activities and support costs) by filing a lien against real property subject to
the remedial actions.
C. Implementation of Remedial Action
If Ecology determines that the City has failed without good cause to implement the
remedial action, in whole or in part, Ecology may, after notice to the City, perform any or all
portions of the remedial action that remain incomplete. If Ecology performs all or portions of
the remedial action because of the Cityts failure to comply with its obligations under this Order,
the City shall reimburse Ecology for the costs of doing such work in accordance with Section
VIII.B (Remedial Action Costs), provided that the City 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 City 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.
D. Designated Project Coordinators
The project coordinator for Ecology is:
Panjini Balaraju
Toxics Cleanup Program
PO Box 47600, Olympia, W A 98504-7600
(360) 407-6161
E-mail: pbal461@ecy.wa.gov
The project coordinator for the City is:
Thomas Knuckey
3027 Olympus Drive
Bremerton, Washington 98310
(360) 473-2376
E-Mail: thomas.knuckey@ci.bremerton.wa.us
Agreed Order No. DE-07TCPHQ-5024
Page 11 of21
Each project coordinator shall be responsible for overseeing the implementation of tins
Order. Ecology's project coordinator will be Ecology's designated representative for the Site.
To the maximum extent possible, communications between Ecology and the City, and all
documents, including reports, approvals, and other correspondence concerning the activities
perfonnedpursuant 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
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.
All engineering work performed pursuant to this Order shall be under the direct
supervision ofa professional engineer registered in the State of Washington, except as otherwise
provided for by RCW 18.43.130.
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.
Any docunlents 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 City shall notify Ecology in writing of the identity of any engineer(s) and
geologist(s), contractor(s) and subcontractor(s), and others to,be used in carrying out the tenns of
this Order, in advance of their involvement at the Site.
Agreed Order No. DE-07TCPHQ-5024
Page 12 of21
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 City either owns, controls, or has access
rights to at all reasonable times for the purposes of, inter alia: inspecting records, operation logs,
and contracts related to the work being performed pursuant to this Order; reviewing the City'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 verifying the data submitted to
Ecology by the City. The City shall make all reasonable efforts to secure access rights for those
properties within the Site not owned or controlled by the City 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 City unless an emergency prevents such notice. All persons who access the Site pursuant
to this Section shall comply with any applicable Health and Safety Planes). 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 City 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 Taxies Cleanup Program Policy 840 (Data Submittal Requirements), and/or any
subsequent procedures specified by Ecology for data submittal. Attached as Exhibit D is
Ecology Policy 840, Data Submittal Requirements.
If requested by Ecology, the City shall allow Ecology and/or its authorized representative
to take split or duplicate samples of any samples collected by the City pursuant to
implementation of this Order. The City shall notify Ecology seven (7) days in advance of any
sample collection or work activity at the Site. Ecology shall, upon request, allow tile City and/or
Agreed Order No. DE-07TCPHQ-5024
Page 13 of21
its authorized representative to take split or duplicate samples of any samples collected by
Ecology pursuant to the implementation of this Order, provided that doing so does not interfere
with Ecology's sampling. Without limitation on Ecology's rights under Section VIILF (Access),
Ecology shall notify the. City 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 othervvis'e approved by Ecology.
H. Public Participation
A Public Participation Plan is required for this Site. Ecology shall review any existing
Public Participation Plan to determine its continued appropriaten~ss and whether it requires
amendment, or if no plan exists, Ecology shall develop a Public Participation Plan alone or in
conjunction with the City.
Ecology shall maintain the responsibility for public parlicipation at the Site. However,
the City 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, and before major meetings with the interested public and local governments.
Likewise, Ecology shall notify the City prior to the issuance of all press releases and fact sheets,
and before major meetings with the interested public and local governments. For all press
releases, fact sheets, meetings, and other outreach efforts by the City that do not receive prior
Ecology approval, the City shall clearly indicate to its audience that the press release, fact sheet,
meeting, or other outreach effort was not sponsored or endorsed by Ecology.
Agreed Order No. DE-07TCPHQ-5024
Page 14 of2l
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.
4. "When requested by Ecology, arrange and/or continue information repositories to
be located at the following locations:
a Bremerton Public Library
612 5th Street North
Bremerton, Washington 98337
b. Washington Department of Ecology
Headquarters Office
300 Desmond Drive
Lacey, WA 98503
At a minimum, copies of all public notices, fact sheets, and press releases; all quality assured
monitoring data; remedial action plans and reports, supplemental remedial planning documents,
and all other similar documents relating to performance of the remedial action 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 City shall preserve all records, reports, documents,
and underlying data in its possession relevant to the implementation of this Order and shall insert
a similar record retention requirement into all contracts with project contractors and
subcontractors. Upon request of Ecology, the City shall make all 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 VIlI.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 City has fourteen (14) days within which to notify
Agreed Order No. DE-07TCPHQ-S024
Page 15 of21
Ecology's project coordinator in writing of its objection to the decision or itemized
statement
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 City may then request regional management review of the decision.
This request shall be submitted in writing to the Toxics Cleanup Land & Aquatic Lands
Cleanup Section Manager 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
City's request for review. The Section Manager's decision shall be Ecology's fmal
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 tllls 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 faslllon, generally at least tlllrty (30) days prior to expiration of the
deadline for wlllch 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 jf the extension
were granted.
Agreed Order No. DE-07TCPHQ-5024
Page 16 of21
2. The burden shall be on the City 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 City 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 City;
b. Acts of God, including rue, 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 City 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 VIILL
(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 VIll.M (Endangerment).
Agreed Order No. DE-07TCPHQ-5024
Page 17 of21
L. Amendment of Order
The project coordinators may verbally agree to minor changes to the work to be
performed without formally amending this Order. Minor changes will be documented in writing
by Ecology within seven (7) days of verbal agreement.
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 City. The City 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 tins Order represents a substantial change, Ecology will provide
public notice and opportunity to comment. Reasons for the disapproval of a proposed
amendment to tins 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).
L. . Endangerment
In the event Ecology determines that any activity being perfomled 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 City to cease such activities for such period of time as it deems
necessary to abate the danger. The City shall immediately comply with such direction.
In the event the City detemlines 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 City may cease
such activities. The City 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 City shall provide Ecology with documentation of the basis for the
determination or cessation of such activities. If Ecology disagrees witll the City's cessation of
activities, it may direct tile City to resume such activities.
If Ecology concurs willi or orders a work stoppage pursuant to Section VIII.M
(End an gennent) , the City's obligations with respect to the ceased activities shall be suspended
Agreed Order No. DE-07TCPHQ-5024
Page 18 of21
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 VIILK (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.
M. Reservation of Rights
This Order is not a settlement under Chapter 70.1 05D 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 City to recover remedial action
costs paid to and received by Ecology under this Order. In addition, Ecology will not take
additional enforcement actions against the City regarding remedial actions required by this
Order, provided the City 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.
N. Transfer of Interest in Property
No voluntary conveyance or relinquishment of title, easement, leasehold, or other interest
in any portion of the Site shall be consummated by the City without provision for 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 City's transfer of any interest in all or any portion of the Site, and during the
effective period of this Order, the City shall provide a copy of this Order to any prospective
purchaser, lessee, transferee, assignee, or other successor in said interest; and, at least thirty (30)
days prior to any transfer, the City shall notify Ecology of said transfer. Upon transfer of any
Agreed Order No. DE-07TCPHQ-5024
Page 19 of21
interest, the City shall restrict uses and activities to those consistent with this Order and notify all
transferees of the restrictions on the use of the property.
O. Compliance with Applicable Laws
1. All actions carried out by the City 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 provideci in RCW 70.105D.090. The permits or specific
federal, state or local requirements that the agency has determined are applicable and tbat are
known at the time of entry of this Order have been identified in Exhibit C.
2. Pursuant to RCW 70.105D.090(1),' the City 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 City shall comply
with the substantive requirements of such permits or approvals. The exempt pemlits or
approvals and the applicable substantive requirements of those permits or approvals, as they are
known at the time of entry of this Order, have been identified in Exhibit C.
The City has a continuing obligation to determine whether additional permits or
approvals addressed in RCW 70.105D.090(l) would othervv'ise be required for the remedial
action under tllls Order. In the event either Ecology or the City determines that additional
, '
pemlits 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 detemlination.
Ecology shall determine whether Ecology or the City shall be responsible to contact the
appropriate state and/or local agencies. If Ecology so requires, the City shall promptly consult
with the appropriate state and/or local agencies and provide Ecology with written docunlentation
from those agencies of the substantive requirements those agencies believe are applicable to the
remedial action. Ecology shall malce the final determination on the additional substantive
requirements that must be met by the City and on how the City must meet those requirements.
Ecology shall inform the City in writing of these requirements. Once established by Ecology,
the additional requirements shall be enforceable requirements of tIus Order. The City shall not
Agreed Order No. DE-07TCPHQ-5024
Page 20 of 21
begin or continue the remedial action potentially subject to the additional requirements until
Ecology makes its [mal determination.
3. Pursuant to RCW 70.105D.090(2), m the event Ecology determines that the
exemption from complying with the procedural requirements of the laws referenced in
RCW 70.105D.090(l) 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 City
shall comply with both the procedural and substantive requirements of the laws referenced in
RCW 70.1 05D.090(1), including any requirements to obtain permits.
P. Indemnification
The City 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 City, its officers, employees, agents, or contractors in entering into and implementing this
Order. However, the City shall not indemnify the State of Washington nor save nor hcild 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.
IX. SATISFACTION OF ORDER
The provisions of this Order shall be deemed satisfied upon the City's receipt of written
notification from Ecology that the City has completed the remedial activity required by this
Order, as amended by any modifications, and that the City has complied with all other provisions
of this Agreed Order.
x. ENFORCEMENT
Pursuant to RCW 70.1 05D.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 investigative and remedial actions and orders related to the Site.
Agreed Order No. DE-07TCPHQ-5024
Page 21 of21
C. In the. event the City refuses, without sufficient cause, to comply with any term of
this Order, the City will be liable for:
a. 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
b. Civil penalties of up to twenty-five thousand dollars ($25,000) per day for
each day it refuses to comply.
D. This Order is not appealable to the Washington Pollution Control Hearings Board.
TIns Order may be reviewed only as provided under RCW 70.105D.060.
Effective date of this Order:
l~vA'.....,.t-,-.... :(0. ;(0 or
./
CITY OF BREMERTON
STATE OF WASHINGTON,
DEPARTMENT OF ECOLOGY
. jk/t:
.~~
Tim 1. Nord
Section Manager
Toxics Cleanup Program
Land & Aquatic Lands Cleanup Section
Telephone: (36,0) 407-7226
Phil Williams
Public Warks and Utility Director
The City of Bremerton
Bremerton, Washington
Telephone: (360) 473-2376