HomeMy WebLinkAbout10/07/2008 17 City/County Joint Clean-up of Richardson Airways, Inc. at the Yakima Air Terminal BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. ( - 1
For Meeting Of October 7, 2008
ITEM TITLE: Consideration of a resolution authorizing the City Manager to sign a Consent
Decree, together with Yakima County ( "County "), for the clean -up of Richardson Airways, Inc.
at the Yakima Air Terminal, with the Washington State Department of Ecology ( "Department of
Ecology") pursuant to the Model Toxics Control Act ("Toxics Control Act") RCW 70.105D.
SUBMITTED BY: Dave Zabell, Assistant City Manager
Lawrence Wafters, Senior Assistant City Attorney
CONTACT PERSON/TELEPHONE: Dave Zabell, (509) 575 -6040
Lawrence Waters, (509) 575 -6030
SUMMARY EXPLANATION: The City of Yakima and Yakima County, as joint owners of the
Yakima Air Terminal, have received approval for grant funding from the Washington State
Department of Ecology ( "Ecology") for clean -up of the Richardson Airways, Inc. site at the Air
Terminal. The funding is tied to approval of a Consent Decree with Ecology that govems the
clean -up under the Model Toxics Control Act, RCW 70.105D. The attached resolution
authorizes the City Manager (or designee) to sign the Consent Decree, in concert with the
County Board of Commissioners. This will allow the clean -up to commence.
Resolution X Ordinance Other (Specify)
Contract Mail to (name and address):
Phone:
Funding Source Washington State Department of Ecology
APPROVED FOR SUBMITTAL: �.t� City Manager
STAFF RECOMMENDATION: Adopt Resolution
BOARD /COMMISSION/COMMITTEE RECOMMENDATION:
COUNCIL ACTION:
•
RESOLUTION NO. R -2008-
A RESOLUTION authorizing the City Manager to sign a Consent Decree, together with
Yakima County ( "County"), for the dean -up of Richardson Airways, Inc.,
at the Yakima Air Terminal, with the Washington State Department of
Ecology ( "Department of Ecology") pursuant to the Model Toxics Control
Act ( "Toxics Control Act") RCW 70.105D.
WHEREAS, the City and the County are the co- owners of the Yakima Air Terminal ( "Air
Terminal "); and
WHEREAS, from 1953 to 1992, Mr. Ralph Richardson leased approximately 157,000
square feet of Air Terminal property and operated an aerial pesticide applicator service on the
site for 38 years; and
_ WHEREAS, operations at the site included filling an airplane spray tank with pesticide
solution and on completion of the aerial spraying, washing the tank at the "washdown site "; and
WHEREAS, soil samples from the site revealed the presence of hazardous substances
including Aldrin, Chlordane, DDT and Dieldrin; and
WHEREAS, clean -up of the site will benefit the operations of the Air Terminal and the
public; and
WHEREAS, the Department of Ecology has set aside grant funding for the City and the
County that will provide ninety per cent (90 %) of the costs of the clean -up; and
WHEREAS, the City and the County have negotiated a Consent Decree with the
Department of Ecology as provided in the Toxics Control Act and
WHEREAS, the approval of the Consent Decree is a pre - condition to the clean -up, now,
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager for the City (or designee) is hereby authorized to sign the Consent
Decree with the Department of Ecology for the clean -up of the Richardson Airways site at the
Air Terminal.
ADOPTED BY THE CITY COUNCIL this 7th day of October, 2008.
Dave Eder, Mayor
ATTEST:
City Clerk
' 1 ,
2
4
5
6
7 STATE OF WASHINGTON
YAKIMA COUNTY SUPERR)R COURT •
8
STATE OF WASHING'T'ON,
9 D1 PAR "TMI N'1' OF ECOLOGY, NO
10 Plaintiff, CONSENT f:)1::;CRE-1.
11 v.
12 CITY OF YAKIMA., (:OLJN "1"Y OF
YAKIMA.
. 1 3 .
14
15
TABLE TA.BLE r E N I , Y
16
• 1. INTRODUCTION
R.ODU(.... ION :l
17
11. J1JI:iSI)ICTION
18
19 Ili. PARTIES BOUND 6
2(l IV. DEFINITIONS 6
21 V. FINDINGS OF FACTS 8
22 VI. WORK TO BE PERFORMED 10
23 V1.1. 1:)FS10NAT1 D PROJECT COORDINATORS 12
24 VIII. PERFORMANCE 13
25 IX. ACCESS 13
26
•
CONSENT DECREE I ATTORNEY GENERAL 01: WASHINGTON
Lfrology Division
PO Ros 10117
Olympia. \•VA 9850 •
FAX (360) 556 -6760
1 X. SAMPLING, DATA suBmiTTA t„ AND AVAILAI311.1TY 14
2 X1. PROGRESS REPORTS 15
3 XII. RETENTION OF RECORDS 16
X111. TRANSFER OF INTEREST IN PROPERTY 16
5
XIV. RESOLUTION OF Dism ars 16
6
XV. AMENDMENT OF DECRIJi 18'
7
XVI. LATENSION 01 SCHEDULE' • 19
8
XVII. ENDANGERMI 20
9
10 XVIII. COVENANT NOT TO SUE 21
11 XIX. CONTRIBUTION PROTECTION
12 XX, LAND USE RESTRICTIONS
13 XXI. FINANCIAL ASSURANCES 23
4 XXI I. INDEMNIFICATION 24
15 XXIII. C.OMPLIANCE WITH APPLK:ABLE LAWS
16 XXIV. REMEDIAL ACTION COSTS 26
1 XX V. 11V1P1.EMENTATION OF l EMEDIA 1 ACTION • 26
18 -
XXVI. PERIODIC REVIEW 27
19 X•VII• PUBLIC PARTICIPATION 27
20
XXVIII.DURATION OF DECREE 28
21
XXIX. CLAIIVIS AGAINST THE STATE 29
22
XXX. 1F11:(."1'1 V1: DATE 29
23
XXXI. WITHDRAWAL OF CONSENT • 29
24
25
1P,X1-11131T A Cleanup Action Plan
26 EXHIBIT 13 Site Diagrams
CONSENT I)ICREI 2 Anoi:Nry orNrRAL or WASI iTON 411
Box 40117
Olympia, WA 9850
FAX (3(0) 5g6-6760
1 IEXI I1BI'I' C Scope of Work and Implementation Schedule
EXHIBIT 1) Public Participation Plan •
2 1 :.XI-I113I7' E Ground Water Sampling Data Submittal Requirements
4
6
•
7 •
8
- 9 •
10
11
12
i:>
il
15
16 •
17
18
19
20 •
•
21 •
23
24
•
25
•
26 •
\ '1 'fUl(NI:Y GI:NI {KAI. OI \Yi \SI IINCi'I'l)N
CONSENT DFCRE 3
}'-Colo,' Division
PO Box 'I(I 17 •
Olymjiia. \V,\ 055040 17
FAX (360) 586.6760
4 110
1 1. 1 NTR()1) U ( :;'1'1()1
2 A. The mutual objective of the State of Washington, Department of Ecology
(Ecology) and the Defendants (City of Yakima and the County of Yakima) under this Decree is
4 to provide for remedial action at a facility where there has been,0 release or threatened release
• 5 of hazardous substances. *phis Decree requires Defendants to develop a Cleanup Action. Plan
6 (('AP) (attached as Exhibit A) and then inipllement that Plan to remediate the contaminated
7 soils in the "washdown area" of Richardson Airways. As more fully described in the CAP, this
8 Decree quir the T)efendants e: and m th conlarninad soils at the Yaka.
9 Air 'l'erm es ( Richardson Airways . excavat Inc 1)orecumente ae t► te 0l' the remediation sha 11 im be
10 submitted to Ecology in a.completion report.
11 Ecology has determined that. these actions are necessary to protect human health and
12 the environment. •
13 1:3. The Complaint in this action is bein.n filed simultaneously with this Decree. An
14 Answer has not been Piled. and there has not been a trial on any issue of tact or law in this case.
15 However, the Parties wish to resolve the issues raised by Ecology's Complaint. In addition,
16 the Parties agree that settlement of these matters without litigation is reasonable and in the
17 public interest_ and that entry of this Decree is the most ,appropriate means of resolving, these_
18 matters.
19 C:'. 1:colol,y entered into a prior Consent Decree \.\'ith the (.:'iiy or Yakima, Yakima
20 County and Ralph Richardson which was tiled 111 Yakima County Superior Court under cause,
21 number 97 -2- 01092 -5 ( "the Prior Consent Decree "). '1'he City of Yakima., County of Yakima
22 and Ecology will jointly move 1.0 dismiss the Prior Consent Decree only against Defendants
23 City of Yakima and County of Yakima. The dismissal of City of Yakima and the County of
24 Yakima under the Prior Consent Decree will not apply to Ralph Richardson. Any monitoring
25 or operation and maintenance work not completed by the City of Yakima and County of
26 Yakima under the Prior Consent Decree will be addressed in the Cleanup Action Plan to this
CONSEN'T. DECREE 4
ATTORNEY GENERAL. WASHINGTON
ricoiogy Division
1'O Ilo..401 17
Olympia, WA 9851)4.01.17
VAN (3(0) 586- 4.760
•
1 Decree. This Consent Decree will supersede the•prior Agreed (.)r'dcr• made between Neology,
2 Richardson Airways.. Inc. and the Yakima Air Terminal (I.)E 91 "T•C- C455).
3 1). By signing this Decree, the Parties agree to its entry and agree to be bound by
4 its terms.
5 • E. By entering into this Decree,, the Parties do not intend to discharge non •settling
6 parties li'orn any liability they may have with respect to matters alleged in the Complaint. The
7 Parties retain the right to seek reimbursement,, in whole or in part, from any liable persons for
8 sums expended under •this Decree. •
9 F. This Decree shall not be construed as proof of liability or responsibility for any
10 releases of hazardous substances or cost for remedial action nor an admission of any facts;
11 provided, however, that Defendants shall not challenge the authority of the Attorney General
12 and 1'colcrt;y to enforce this Decree.
13 C.i. The ('ot.lri is fully advised of the reasons .for entry of this Decree:- and good
14 cause having peen shown:
15 Nov,-.. therefore=, ii is 11Id .1: RY ORDERED. A1)Jtll)C N), AND D1;C.R1 I) as follows:
1 6 I L JURISDICTION SDIC TIOr' •
17 A. This Court: has jurisdiction over the subject matter and over the Parties pursuant
18 to the Model '1'oxics Control A.ct: (IMMTCA), Chapter 70.1051) RC W.
19 B. Authority is conferred upon the Washington Stale Attorney General by 1:C:' \'t%
20 '70.1051).040(4)(a) to agree to a settlement with any potentially liable person (P1..P) if after
21 public notice and any required hearing, Ecology finds the proposed settlement would lend to a
22 more expeditious cleanup of hazardous substances. R.CW 70.105D.040(4)(b) requires that
23 such a settlement be entered as 0 Consent Decree issued by a court of competent jurisdiction.
24 C. Ecology has determined that a release or threatened release of hazardous
25 substances has occurred at the Site that is the subject of this Decree.
26
CONSENT DECREE. ;; ATTORNEY c;rm :r :At. or WASHINGTON •
Neology Division
PD Box 101 17 •
orympia. \ \'A 98501-0117
VAX (3(+ 556 -6760 •
•
•
•
1 • 1), li colog_y has given notice to Defendants of Ecology's_ determination that
2 Defendants are P1,Ps for the Site, as required by R.CW 70.10511020(21) and WAC
3 1 73- 340 -500.
4 1 :. 'l he actions to be taken pursuant to this Decree are necessary to protect public
5 health and the environment.
6 1". This Decree has been subject to public notice and comment.
7 • G. Ecology lands that this Decree will lead to a more expeditious cleanup of
8 hazardous substances at the Site in compliance with the cleanup standards established under
•
9 RCW 70.1051).030(2)(e) and Chapter 173 -340 WAC.
10 11. - Defendants have agreed to undertake the actions specified in this Decree and
11 consents to the entry of this Decree under M'I'CA.
12 111. PARTIES BOUND
13 This 1 ccrec shall apply to and be binding upon the Parties to this 1)ceree their •
•
14 successors and assigns. The undersigned representative of each party hereby certifies that he
15 or she is fully authorized to enter into this Decree and to execute and legally hind such party to
16 comply with this Decree. Defendants agree to undertake all actions required by the terms and
17 conditions of this Decree. No cluing,c in ownership or corporate status shall alter 1..)cfe:.ltclanis` •
18 responsibility under this Decree. Defendants shall provide a copy of this Decree to ali agents.
.19 contractors, and subcontractors retained to perform work required by this Decree. and stall
20 ensure that all work undertaken by such agents, contractors, and subcontractors complies with
•
21 this Decree.
22 IV. DEFINITIONS •
23 Unless otherwise specified herein, all definitions in RCW .70.10511020 and
24 WAC 173-340-200 shall control the meanings of the terms in this Decree.
25
26
CONSENT DECREE G n r ccl:rvr:li,v, or WAst nNrt rorr
} oloc\ Division
PO Iron 401 17
Olympia. \V,\ 9S504-01 17
FAX (SW) 5l..4)-6760
•
•
I A. Site: The Site is rcferied.to as the "washdown area" at Richardson Airways. It
2 is located near the southeast corner of the 'Yakima Air Terminal property adjacent to the
3 nor•h /south taxiway of Runway No. 34. Specifically, the Site location is defined as:
4. Commencing at. the Northwest corner of Section 2, T. 12N., R. 18E., W.M.
5 'Thence S 89" 53'29" F along line of the Northwest quarter of said section a
6 distance of 20,13.08 feet; thence 00 "25'05" E a distance of 1531.05 feet to a point
7 in the North - South fence line West of the North -South Runway, said point being
8 the True Point of Beginning. 'Thence N 00 "25'05 ".W along said fence line, and
9 • the extension thereof a distance of 186.27 feet, thence N 89 °02'42" 1?, a distance
10 • of 62.17 feet.
11 , Thence N 03'01'46" li a distance of 7'7.20 feet,
12 '1.'hence 5 88 °54'21" 1' a distance of 27.33 feet, •
ID 1 3 'Thence S 03"42'46" F. a distance of 263.63 feet,
14 'thence S 89 "34'55" \\- a distance. of 109.28 feet. •
15 to the point. of the beginning.
16 The Site is more particularly illustrated in Exhibit -11 to ibis Decree which arc: the Site
17 Diagrams, The Site constitutes a Facility under RCW 70.1051:).020(5).
1
18 1'1. Parties: Reler:s to the State.' of Washington, 1). part.rneel of I:.ccilc) t�, ;and the:
19 (.'iiy of Yakima and the C.'ounty of Yakima.
20 C. 1.)e1i nd,;tnts: Refers to the City or Yakima and the ('minty of
21 • 1). Consent Decree or Decree: Refers •o this Consent Decree and each of the
22 exhibits to this Decree. Al.l ex.hibit:s are integral and enfm'ecablc parts of this (..Consent Decree.
23 The terms "Consent Decree" or "Decree" shall .include all exhibits anti figures to this Consent
24 Decree. •
25
26
CON SENT DI.C'Rk;E; 7 :\' r c \'c;r:Nl:It,v.c)r•W. \slnNcrci4
.
1:cololry Division
12os 40117
Olympia. W(\ 504.1)11
FAX (3() 0) $86 -67611
•
•
V. FINDINGS OF FACTS
2 Ecology makes the Following findings of fact without any express or implied •
3 admissions of such Facts by Defendants.
4 A.. The City of Yakima ancl the Comity of Yakima are eo- owners of the Yakima
5 Ai 'I'erniinai property where the Facility is located. "I'Iie Facility mane is Richardson Airways.
6 13. The Site is listed on the 1)epartment of Ecology's Hazardous Sites l,ist.. as
7 "Richardson Airways" with the Facility Site ID No. 442. The Site Hazard Assessment ranking
8 for this Site is 2.
•
9 C. from approximately, 1953 to 1992, Mr. Ralph Richardson leased approximately
10 157,000 square Feet of Yakima Airport property. Mr. Richardson operated Richardson
1 Airways, Inc., an aerial pesticide appliciator service, on the Site for approximately 38 years
12 between 1954 and 1992. Operations at the facility include filling an applicator airplane spray
13 tank with pesticide solution, then upon completion of aerial spraying \washinu,, cleaning and/or
14 rinsing, the airplane tank at the washdo \vn. site." This site was a small area of the lease
15 (117,000 sq. ft.). Waste wi:lter frorn the cleaning procedure was allowed to seep into file
16 surrounding :,oils and Gram into nearby catch basins.
17 1). Surface. soil samples were taken and analyzed from the washc]own area in 1989
18 by Technic() c : 1.'.n \'ii ScrVices t)rgnilochloririe pesticides were found in the soil in the
19 "\waslxiown area ". The follo\.ving pesticides :found in soil samples exceeded MTCA. Method 11
20 soil cleanup levels protective of groundwater (VAC 173._340- 740(3)(a)(ii)(A)):
1 ® A I dh n
22 ® Chlordane
23 ® 1)1)1'
24 ® 1)ieldrin
25 L;. In January of 1992, Ecology, Richardson Airways. Inc. and Yakima Air
26 Terminal entered into an Agreed Order (DE? 91 "I'C- C455). 'fhe. Yakima Air Terminal is co.-
CONSENT DECREE 8 ArrollNEY GENERAL oP \\nsiunci•ron
Ecology Division
PO iiuc 40117
1)iympia, W,\ 98504-
FAX (361))'586 -6760
• •
1 owned by the City of Yakima and the County of Yakima. "Ibis Agreed Order required a RJ /FS
2 be conducted of the soil in or near the "washdown area" and "burn pit ", and that a R1 /FS work.
3 plan and report and 1-lcal•h and Safety plan be submitted tO 1,cblogy. The final 11I /FS Work
4 Plan was submitted on October 5, 1992. and \was accepted by Ecology.
5 1. A.' Remedial lnvestigation /feasibility Study (R1 /FS) was conducted from 1992
6 to 1993 in and adjacent to the "washdown area" by C112M -Hill. The R1 soil samples found
7 numerous pesticides and herbicides in the soil to 0 depth of ten and one -half feet. There were
li two herbicides (2,4 -I) and dinoseb) found in the soil samples that did not exceed MTC:A
9 Method 13 soil cleanup levels. The following pesticides found in the soi.I samples exceeded
10 \1 "1'C',1 Method B soil cleanup levels protective of groundwater (MAC 173.340-
1 1 740(3)(a)(ii)(A)):
12 « Aldr'in
•13 1)1)1.:)
14 * 1)1) 1'
15 I)ie.Idrin
16 e 1'ndosuli an 1 (alpha)
17 1 ndosulfan 11 (beta)
15 a9 l::ndosulaan Sulfate
19 e bndrin
20 I::ndrin Aldehyde •
21 1. ndrin Ketone •
22 C.1. During the R1, lbui' groundwater monitoring wells were installed in and adjacent
23 to the "washdown area ". 'J'hree more groundwater monitoring wells were installed at the "burn
24 pi.t ". All seven welts were sampled in 1992. Analyses found ne groundwater pesticide or
25 herbicide contamination attributable to the "washdown area" or the '`burn pit ". • Additional
26 •
4
CONSENT 1)) (:RI 9 ATTORNEY GENERAL OF WASHINGTON
Ecology Division
PO I3ox 40117
Olympia. WA q8504-0 I 17
FAX (340) 586 - 6760
•
1 groundwater samples were taken in 1994 and 1995. "Those analyses found no groundwater
2 pesticide or herbicide contamination, attributable 10 the "washdown area ".
3 11, On October 17, 1994, l?cology issued an Enforcement Order to Richardson
4 Airways. Inc. and Yakima Air Terminal (I)E 94-TCC437). 'Phis Enforcement Order required
5 Richardson Airways, Inc. and Yakima Air Terminal to hire a consultant,, submit to Ecology a •
6 Cleanup Action Plan, implement the Cleanup A.ction Plan, and to submit progress reports and
7 laboratory results to Ecology. Ecology rescinded this Enforcement Order by letter on October
8 18, 1994.
9 1. in May of 1997, Ecology, the City of Yakima, County of Yakima and Ralph
10 Richardson entered into a Consent decree (97- 2- 01092 -5). The Consent Decree required that a
11 Restrictive Covenant he placed on the "washdown area" and the installation and sampling of
12 rive new groundwater monitoring wells • A Restrictive Covenant was placed on the property
13 title for the -washdown area" 00 March 26, 1998. The Covenant placed properly and
14 groundwater use constraints or) the "washdown a1Ica'. live new monitoring wells were
15 installed in 1997. The seven 1992 R I /FS wells and the five 1997 Consent Decree wells were
16 sampled from September 9, 1997 to January 3, 2001. Analyses found no groundwater
17 pesticide or herbicide contamination aitribuiahle to the -.washdown area" at Richardson
18 i \irways.
19 J. By letter of June 9. 2003. 1.cology gave the Yakima Air Terminal permission to
20 remove three groundwater wells surrounding the "burn pit ". instead, the contractor removed
21 all twelve Site monitoring wells.
22 • VI. WORK TO BE PERFORMED
MED
2; This Decree contains 0 program_, a total removal action of pesticide and herbicide
24 contaminated soils, designed to protect human health and the environment from the known
25 release, or threatened release, of hazardous substances or contaminants at, on, or from the Site.
26
CONSENT DECREE 10 A'rrONNIi' GENERAL OF WAS] BNM.;TON
,N I L. L.( hl..t:
rcolue) D irision
Pe) 13i» 41)117
Olympia. WA ?8504-0117
FAN (360) 530 -0760
al)
1 A. Yakima County and the City of Yakima shall submit. a Draft Cleanup Action
2 Plan (1) -CAN) and Draft 'Work Plan for Ecology review and comment. "hhc D-CAP and 1.)raft
3 Work Plan shall address and implerlc.nt the removal action of contaminated soils from the
4 " Nvashdown area" at Richardson Airways. The Draft Work Plan shall include a Health and
5 Safety Plan for Ecology's review, and a soil Confirmation Sampling Plan for Ecology's review .
6 and approval.
7 • 13. Yakima County and the City of Yakima shall submit a Final Cleanup Action
8 Plan (CAP) and Final Work Plan that incorporates Ecology's written comments from the draft
. 9 submittal.
10 C. The Defendants shall implement the Work Plan by excavating contaminated
11 soils above M'I VA Method 13 levels which are protective of groundwater front the ..
1
12 'v ishdown area" and by transporting then) t0 11n. acceptin!1., permitted landfill. Maxiall.lrrn
1 3 excavation shall be timed to oCCur 05 evidcnccd by low annual grotind vatcr elevation Ievcls in
i i
14 nearby wells, All transported c:ontamin aicd soil loads shall be covered, .
15 1). The two catch 7asins on the periphery of the `�washdoWtl area" shall be cleaned,
16 or removed and disposed of with the other contaminated soils.
17 1. ;. The F)efendants shall confirm) the `Clean' Site status from analyses or soil
18 confirmation samples from the excavation. Analyses shall he for all pesticides and herbicides
19 identified in Section V(1)) and (F).
20 F. When soil confirmation analyses indicate that excavation of contaminated soils
21 that exceed M"IVA. Method U protective of groundwater is achieved, the excavation shall be
22 Ii11ed with clean fill, traded, and compacted to the satisfaction of the Yakima Air Terminal.
23 - G. When soil confirmation analyses confirm that all • contaminated soil above
24 M'I'C:'A Method B protective '.of f roundwater has been removed, the March 26, 1998,
25 Restrictive: Covenant may be removed from the property title.
2(i
OP . .
CONSENT 1)1?CRI:tE 1 1 Al I ORNII 11 iNI RAI. or WAS' fIno ION
Ecology Division
PO Box 40117
Olympia, \\'A 98504-0117
FAX (300)580-0700
1 1 1. After fieldwork is completed, three copies of a Final Remediation Report shall
2 be submitted) to Ecology.
3 1. Defendants agree not to perform any remedial actions outside the scope of this
4 Decree unless both Parties agree to modify the Work Plan or the Implementation Schedule
5 (Exhibit A) to cover these actions. All work conducted by Defendants under this Decree shall
6 be done in accordance with Chapter 173-340 WAC unless otherwise provided herein.
7 VII.. DESIGNATED PROJECT COORDINATORS
8 The project coordinator for Ecology is:
9 Mr. Richard Bassett •
15 W. Yakima Avenue, Suite 200
10 Yakima, WA 98902 -3452
•
(509) 454 -7839
11 (fax) 509/575 -2809
e -mail: rbas461(C12.ecy.
12
13 The project coordinator for Defendants City of Yakima Lind Yakima ('ormty
14 Daveabell
Assistant City ivlanager
1.5 City of Yakima •
12) N. 2d
I6 • Yal<irna- W\ 'A 98901
Telephone: (509) 575 -60
17
18
Eal vrence 1,k/utters
19 Senior Assistant ('ity Attorney •
City of Yakima
20 200 S. Third St.
Yakima, WA. 98901
21 'Telephone: (509) 575 -6030
22 Each project: coordinator shall be responsible for overseeing the irnplen:rentation of this
23 Decree. Ecology's project coordinator will be Ecology's designated representative for the Site.
24 'T the maximum extent possible, communications between Ecology and Defendants and all
25 documents including reports, approvals, and other correspondence concerning the activities
26 performed pursuant to the terms and conditions of this Decree shall be directed through the
CONSENT DECREE 12 m roRNEY GENERAL O WA. IINCrroN
Ecology Division
PO Box 40117
Olympia, \VA 9850:1-0117
FAX (360) 586 - 676()
•
•
1 project. coordinators. The project coordinators may designate, in writing, working level staff
2 contacts for all or portions of the implementation of the work to be performed required by this
3 Decree.
4 Any party may change its respective project coordinator, Written notification shall be
5 given t0 the other party al least ten (1 0) calendar days prior to the change,
6 'VIII. PERFORMANCE
7 All geologic and hydrogeologic work. performed pursuant to this Decree shall be under
8 the supervision and direction of a geologist licensed in the State of Washington or under the
c) direct supervision of a professional engineer registered in the State of Washington, except as
10 otherwise provided for by Chapters 1$.220 and 18.43 RCW.
All engineering work performed pursuant to this Decree shall be under the direct
11
supervision of a professional engineer registered in the State of Washington, except aS
12
otherwise provided for by RCW 18A3.130:
111/1:3
All construction work performed pursuant to this Decree shaft be under the direct.
14 supervision of it professional engineer or a qualified technician under the direct supervision of
1} > > l >
a professional i- n '1 professional i=ns -, inter must be registered in the State of
16 Washington, except as otherwise provided for by RCW 15,43.130.
17 Any documents submitted containing geologic, hydrologic or engineering work shall be
15 under the seal of an appropriately licensed professional as required) by Chapter, 15.220 RCW or
19 RC`W 18.43.130.
20 Defendants shall notify Ecology in writing of the identity o any engineer(s) and
geologist(s), contractor(s) and subcontractor(s), and others to he used in carrying out the terms
21
of this Decree, in advance of' the involvement at the Site.
22
• IX. ACCESS
• 23
Ecology or any Ecology authorized representative shall have full authority to enter and
freely move about all property at the Site that Defendants either own, control, or have access
25
rights to at all reasonable times for the purposes o1 inter alia: inspecting records, operation
26
CONSENT 1)1?CR1:13 13 n I I03(nr;v GGN) Itni3Or• WASIIINC.uTON
I:cology Division
Po No.x 40117
Olympia, WA 9N50141117
FAX (160) 556 -6760
•
• •
1 Logs, and contracts related to the work being performed pursuant to this Decree; reviewing
2 Defendants' progress in carrying out the terms of this Decree; conducting such tests or
3 collecting such samples as ]Ecology may deem necessary; using a Camera, sound recording, or
4 other documentary type equipment to record work done pursuant to this Decree; and verifying
5 the data submitted to Ecology by De•endants, Defendants shall make all reasonable efforts to
6 secure access rights for those properties within the Site not owned or controlled, by Defendants
7 where remedial activities or investigations will be performed pursuant to this Decree. Ecology
8 or any Ecology authorized representative shall give reasonable notice before entering any Site
9 property owned or controlled by Defendants unless an emergency prevents such notice. All
10 Parties who access the Site pursuant to this Section shall be subject to compliance with all
1.1 rules, regulations and standards of the Transportation Safety Administration ("l'SA), Federal
12 Aviation Administration (FAA). 1Iorncland Security, the Yakima Air Terminal, the. City and
13 County of Yakima., ineludins, a ll apl) police.. lire and public safety regulations. Ecology .1111
111 employees and their re.presealtatives shall not he regtiirecl to sign any liability release or waiver
15 as 0 condition of Site 1:)ropc;rty access.
16 X. SAMPLING DATA SaIBMI`J"FAL, AND AN/MI—ABILITY
17 With respect to the implementation of this Decree, Defendants shall snake the results of
1$ all sampliiu.i. laboratory reports, and /or test results generated by it or 00 its behalf available to
19 1Ecology. Pursuant to WAC' 173 - 340 - 840(5), all sampling data shall be submitted to Ecology
20 in both printed and electronic formats in accordance with Section XI (Progress Reports),
21 Ecology's 'foxics Cleanup Program Policy 840 (Data Submittal Requirements), and /or any
22 subsequent procedures specified by Ecology for data submittal.
23 if requested by hcology, Defendants shall allow Ecology and /or its authorized
24 representative to take split or duplicate samples of any samples collected by Defendants
25 pursuant to the implementation of this Decree. Defendants shall notify 1?cology seven (7) days
26 in advance of any sample collection or work activity at the Site. l;cology shall, upon request,
4110
CONSENT DECREE 14 :rrroggNey UENI.:RAL OF WASHINGTON
Ecology Division
IN) 130N 40117
Olympia, WA 9850
FAX t i6U) 586 -(166
•
1 allow Defendants and /or its ttutiioried representative to take split or duplicate samples of any
• 2 samples collected by Ecology pursuant. to the implementation of this Decree.. provided that
3 doing so does not interfere with Ecology's sampling. Without limitation on Ecology's rights
4 .udder Section IX (Access), Ecology shall notify Defendants prior to any simple collection
5 activity Finless an emergency prevents such notice. •
6 in accordance with WAC 173 - 340- 830(2)(a), all hazardous substance analyses shall be
7 conducted by a laboratory accredited under Chapter 173 -50 WAC for the specific analyses to
8 be conducted, unless otherwise approved by Ecology.
9 XI. PROGRESS REPORTS
10 Defendants shall su1)mit to Eleology written monthly Progress Reports that describe the
11 actions taken during the previous month to implement the requirements of this Decree. The •
12 Progress Reports shall include the following:
41 13 A. A list of on -site activities that have - token t)laee durirre the month;
14 13. Detailed description of any deviations from required tastes not otherwise
15 documented in project plans or amendment requests:
16 C. Description of all deviations from the final Work Plan and Schedule. required
• 17 in Section VI (Work 10 be Performed), duriig. the current inonth and any planned deviations in
18 the upcoming month;
19 D. For any deviations in the schedule, a plan for recovering lost time and
20 maintaining compliance with the schedule;
21 1?. All raw data (ineltacling laboratory analyses) received by Defendants during the
22 past month and an identification of the source of the sample; and
23 F. A list of.'deliverables for the upcoming month if different from the schedule.
24 All Progress Reports shall be submitted by the tenth (10 day of the month in which •
25 they are due after the effective date of this Decree. 1.anless otherwise specified, Progress
26
CONS 1:)1:;(1(1.;1; 15 n r1 ORNI.v GENERAL OF \VASUiiN( 1 ON
Neology Division
N(.) Lox 40117
C)Igmhin. WA 985
FAX (300) 586 -67(l)
•
1 Reports and any other documents submitted pursuant to this Decree shall be sent by certified
2 mail, return receipt requested, to Ecology's project coordinator.
3 XII. RETENTION OF RECORDS
4 During the pendency of this Decree, and for ten (10) years from the date this Decree is
5 no longer in of - feet as provided in Section XXV11I (Duration oi' Decree), Defendants shall
6 preserve all records, reports, documents, and underlying data in its possession relevant to the
7 implementation of this Decree and shall insert a similar record retention requirement into all
$ contracts \with project contractors and subcontractors. t)pon request of 1:icology, Defendants
9 shall make all records available to Ecology and allow access For review within a reasonable -
10 i.me.
11 XII.I:. TRANSFER OIL INT'ERES'T' IN PROPERTY
12 No voluntary conveyance or relinquishment. of title, easement, leasehold, or other
13 interest in any portion of the Site shall be cnnsunanmted by Defendants without provision For
•
14 continued operation and maintenance .of any containment system, treatment system.. and /or
15 monitoring system installed or implemented pursuant to this Decree.
16 Prior to a l)efc.ndant's transfer of any interest in all or any portion of the Site.. and
17 during; tyre effective period of this Decree said Defendant shall provide a copy of this Decree
18 to any pi'OSpCC'IiVC'. purchaser, lessee, transferee, i.ltifili?ri(:'C, Oi' other SllCi;l:SS( }i' in said interest;
19 and, at least thirty (30) days prior to any transfer, Defendant shall notify Ecology of said
20 transfer. Upon transfer of any in.tere.st, said Defendant shall restrict uses and activities to those
21 consistent with this Consent Decree and notify all transferees ni'the restrictions on the use of
22 the property.
23 XIV. RESOI:.UT1ON OF DISPUTES
24 A. In the event a dispute arises as to an approval, disapproval, proposed change, or
25 other decision or action by Ecology's project coordinator, or an itemized billing statement
26
CONSENT Z E 16 A'ITORNI:Y GENERAL OF WASHINGTON
1;CDIOL \' Division
PO I3os 40117
Olympia. WA 08
FAX 1360) 556 -6760
•
1 under Section XXI.V (Remedial Action Costs), the Parties shall utilize the dispute resolution
2 procedure. set. forth below.
3 .1. Upon receipt of Ecology's project coordinator's written decision. or the
4 itemized billing statement. Defendants have fourteen (14) days within which to notify
5 Ecology's project coordinator in writing of its objection to the decision or itemized
6 statement.
7 2. The Parties' project coordinators shall then confer in an effort to resolve
8 the. dispute. If the project coordinators cannot resolve the dispute within fourteen (14)
9 days, Ecology's project: coordinator shall issue a written decision.
10 3. Defendants may then request regional management review of the
11 decision. 'Phis request shall be submitted in writing to the Central Region Toxies
12 Cleanup Program Section Manager within seven (7) days of receipt of l:F.cology's
1111 1:3 project coordinator's written decision.
14 '1. Ecology's Regional Section Manager shall conduct a review of the
15 dispute and shall endeavor to issue a written decision regarding the dispute within thirty
16 (30) days of a Defendant's request for review.
17 5. 11' a Defendant finds Ecology's Regional Section Manager's decision
18 unacceptable, Defendants may then request final management review of the decision.
19
This request shall be submitted in writing to the Toxies Cleanup Program Manager
• 20 • within seven (7) days of receipt oI'the Regional Section Manager's decision.
21 (i: Ecology's Toxics Cleanup Program Manager shall conduct 0 review of .
22 the dispute and shall endeavor to issue a written decision regarding the dispute within
23 thirty (30) days of Defendant's request for review of the Regional Section Manager's
24 decision. The Toxics Cleanup Program Manager's decision shall be Ecology's 1:ma1
25 decision on the disputed matter.
26
CONSENT DECREE 17 ATTORNEY lORNIi\ (i13NI l (AL or WASIIIN(, roN
Ecology 1)ivision
l'0 13ox 40117
Olympia. WA 98001.1)117
FAX (360) 086.4760
•
•
If Ecology's final written decision is unacceptable to Defendants, Defendants
2 have the right to submit the dispute to the Court for resolution. The Parties agree that one
3 judge should retain jurisdiction over this case and shall, as necessary, resolve any dispute
4 arising under this Decree. In the event Defendants present an issue to the Court for review, the
5 Court shall review the action or decision of Ecology on the basis of whether such action or
6 decision was arbitrary and capricious and render a decision based on such standard of review.
7 C. The Parties agree to only utilize the dispute resolution process in good faith and
8 agree to expedite, to the extent possible, the dispute resolution process whenever it. is used.
9 Where either party utilizes the disptite'resolution process in bad faith - or for purposes of delay.
1.0 the other party may seek sanctions.
11 17. Implementation of these dispute resolution procedures shall not provide a basis
12 for delay of any activities required in this Decree unless Ecology agrees in writing to a
13 schedule extension or the Court so orders.
jrl
•
XV. AM1i;NDriVIEN'1' ()1s DECREE
15 "1 "h6 projcr..t coordinialors nary iiw'ee. to minor changes to the work to be performed
16 without tiarraaally amending this Decree. Minor changes will he documented in \ Tiiing by
1 7 l:;cr)lotz .
18 Substantial chances to the work to be performed shall require normal amendment of this
19 Decree. This Decree may only be formally amended by a written stipulation among the Parties
20 that is entered by the Court, or by order ol.'the Court. Such amendment shall become effective
21 upon entry by the Court. Agreement to amend the Decree shall not be unreasonably withheld
22 by any party.
23 1)efendants shall submit a written. request for amendment t0 Ecology for approval.
24 Ecology shall indicate its approval or disapproval in writing and in a timely manner after the
25 written request for amendment is received. If the amendment t0 the Decree is a substantial
26 change, Ecology will provide public notice and opportunity for comment. Reasons for the
CONSI:.'.N't' DECREE I t; ATTORNEY GP.NI RAI. or WASHINGTON
Ecology Division
PO I3ox 40117 .
Ohmtpia.\VA 98504 - 0117 •
Mx (30)) 586 -6760
•
•
II • •
1 disapproval off proposed amendment to the Decree shall be stated in writing. If Ecology does
2 not agree to a proposed. amendment, the disagreement may be addressed through the dispute
3 resolution procedures described in Section XIV (Resolution of Disputes).
• 4 XVI. EX'T'ENSION OF SCHEDULE
5 A. An extension of schedule shall be granted only when a request for an extension
6 is submitted in a timely fashion, generally at least thirty (30) days prior to expiration of the
7 deadline for which the extension is requested, and good cause exists for granting the extension.
8 All extensions shall be requested in v�riting. The request shall specify:
9 1. The deadline that is sought to be extended:.
10 2. The length of the extension sought;
1 1 3. The reason(s) for the extension; and
12 4. Any related deadline or schedule that would be affected if the cx.i•.nsion
1111 3 were 1t1'anted.
14 13, The burden shall be on Defendants to demonstrate so the satisfaction of Ecology
15 that the request for such extension has been submitted in a timely f rshion and that good cause
16 exists for arantint3 the extension. Good cansc may include, but may not he limited to:
17 I. C'ircum'stances beyond the reasonable control and despite the due
18 diligence of Def:e.ndani:s including delays caused by unrelated third parities or Ecology
19 such as (but not limited to) .delays by l coloey in re.vic\ \ -i)a �, i :Ipproving, or modiiyinp.
20 documents submitted by Defendant;
21 2. Acts of (.iod, including fire, flood, blizzard, extreme temperatures.
22 storm, or other unavoidable casualty; Or •
23 3. Endangerment as described in Section XVII (I: ndan erinent).
2.4 however, neither increased costs of performance of the terms of this Decree nor
25 changed economic Circumstances shall be considered circumstances beyond the reasonable
26 control of Defendant.
•
CONSENT !:)L "C;Rf'I t9 A 1101011 CY GENERAL (VWASI11N<I)ON
Ecology Division
NO BOX 40117 .
• Olympia, WA 98504 -0117
• FAX (360) 586 -6760
1 C. 1:cology shall act upon any written request for extension in a timely fashion.
2 Ecology shall give Defendants written notification of any extensions granted pursuant to this
3 Decree, A requested extension shall not be effective until approved by Ecology or, if required.
4 by the Court. Unless the extension is a substantial change, it shall not be necessary to amend
5 this Decree pursuant' to Section XV (Amendment of Decree) when a schedule extension is
6 granted.
7 1). An extension shall only be granted for such period of time as Ecology
8 determines is reasonable under the circumstances. Ecology may grant schedule extensions
9 exceeding ninety (90) days only as a result of: — — —
10 1. Delays in the issuance of a necessary permit which was app)icd for in a
11. timely manner;
. 12 2 Other circumstances deemed exceptional or cxta'aorclinary by
13 Ecology: ul
14 3. Endangerment as described in Section XVI1 (Endangerment).
15 XVI . ENDANGERMEN'F
16 In the event Ecology determines that any- activity being per lc) yin al at the Site is c.'reatin;.
• 17 or has the potential to create a danger to human health or the environment, I:.col.Og'y may direct
18 Defendants to cease such activities l:oi' such period of time as it dcerns necessary to abate the
19 danger. Defendants shall immediatcly comply with such dircctlon.
20 In the event Defendants determine that any activity being performed at the Site
21 creating or has the potential to create a danger to human health or the environment, Defendants
22 may cease such activities. Defendants shall notify Ecology's project coordinator has soon as
23 possible, but no later than twenty-four (24) hours-after making such determination or ceasing
24 such activities. Upon Ecology's direction, Defendants shall provide f?cology with
25 documentation of the basis for the determination or cessation of such activities. 11 Ecology
26
CONSENT 20 ATTORNEY ONNi RAI, OF WASHINGTON •
Ecolop' I )iv Imon
1'01iox 40117
Olympia. WA 93504-0117
FAX X (360) S 8( »(7h0
•
\ .
.
I1
1 disagrees with Defendants' cessation of activities, it may direct Defendants to resume such
2 activities. •
i if Ecology concurs with or orders a• work :stoppage pursuant to this Section,
4 Defendants' obligations with respect to the ceased activities shall be suspended until Ecology
5 determines the clanger is abated, and the time for performance of such activities, as well as the
6 time for any other work dependent upon such activities, shall be extended, in accordance with
7 Section XVI (Extension of Schedule), for such period of time as Ecology determines is
8 reasonable under the circumstances. •
9 Nothing in this Decree shall limit the authority of Ecology, its employees, agents, or
10 contractors to take or require appropriate action in the event of an emergency.
11 XVIIII. COVENANT NOT 1'O St.11r,
12 A. Covenant Not to Suc: In consideration of Defendants` compliance with the
13 terms and conditions of this Decree,. Ecology covenants not to institute legal or administrative
• 14 actions against Defendants regarding the release or threatened release or hazardous substances
15 covered by this 1)ccrcc.
1.6 'Phis Decree covers only the Site specifically idemihied in the Site Diagram (1 2)
.17 and those hazardous substauce.s that Ecology 'i )o\vs are located at the Site as of the date or
18 entry or this Decree. This Decree does not cover any other hazardous 'substance or area.
19 Ecology retains all of its authority relative to any substance or area not covered by this Decree.
20 This Covenant Not to Sue shall have no applicability whatsoever to:
21 1. Criminal liability;
22 2. Liability for damages to natural resources; and .
23 3. Any Ecology action, including cost recovery against P1.,Ps not a party to
24 this Decree. .
25
26 .
0
CONSENT DL( RI 1 • 21 \ 1101:NI,N (1 :NI :RA1. or WASHINGTON
13r0IrnVy nivixinn
1 10117
1)l■mpta. WA 98504-0117
FAX (36(1) 5)e -6760
If factors not known at the time of entry of the settlement agreement are discovered and
2 present a previously unknown threat to human health or the environment, the Court shall
amend this Covenant Not Io Sue.
4 13. Reopeners: Ecology specifically reserves the right to institute legal or
5 administrative action against Defendants t0 require it to perf additional remedial actions at
6 the Site and to pursue appropriate cost recovery, pursuant to RCW 70.1051.).050 under the
7 following circumstances:
8 1. Upon Defendant's failure to meet the requirements of this Decree,
9 including, but not limited to, failure of the remedial action to meet the cleanup
10 standards identified in the Cleanup Action Plan (CAP);
11 2. Capon Ecology's determination that remedial action beyond the terms o1'
12 this Decree is necessary t0 abate an imminent and substantial endangerment to human
13 health or the environment;
14 3. Upon the availability of new information regarding factors previously
15 unknown to Ecology, including the nature or quantity of' hazardous substances at the
16 `';ite.. and Ecology's determination, in light of this inlormation.. that further remedial
17 action is necessary at the Site to proiect human health or the environment; or
18 '1. Upon Ecology's determination that additional remedial actions are
19 necessary 10 achieve cleanup standards \within the reasonable restoration time ii ne Set
20 l'ortll in the CAP,
21 C'. Except in the case of an cinergency., prior to instituting legal or administrative
22 action against Defendants pursuant to this Section, Ecology shall provide. Defendants with
23 fifteen (15) calendar days notice of such action.
24
25
26
..... •
CONSENT DECREE : ?� . ��rrolcnl .vcl3N r:nl.c)r\w, \snlnc,roiv
Iicologv Division
PO 130x 40117
Olympia, WA 98 501 -01 17
FAX (360) 586 -0760
. .
0 . .
. .
1 X.IX. CONTRIBUTION PRO EC'1'1ON .
2 • With regard to claims for contribution against .Defendants, the Parties agree thai •
3 Defendants are entitled to protection against claims for contribution for matters addressed in
4 this l:)ecrcc as provided by RCW 70.1051/040(4)(d).
5 XX. LANI) USE 12ESTRIcrif)NS
6 If soil confirmation sampling analyses confirm that M'I'CA. Method 13 Protective of
7 Groundwater has been achieved, the Restrictive Covenant presently on the Site shall be .
8 removed from the property title. -
9 XXI. I+INANCIAI.. ASSURANCES
10 Pursuant to WAC 173 i)efendants shall maintain sufficient and adequate
11 financial assurance mechanisms to cover all Costs associated with the operation and
12 maintenance of the remedial action 11 the Site_, including institutional controls.. compliance
•
• a ' 13 monitoring, and corrective measures.
14 Within sixty (60) days of hie effective. date of this Decree, Defendants shall submit to
15 I solo >y for review and approval an estimate of the costs that. it \ \rill incur In carrying out the
16 terms of this Decree„ includling •operai oil and Im inlenance., and cmnpliance monitoring.
17 \'Vithin sixty (60) days after Ecology approves the aforementioned cost estimate, Defendants
18 shall provide proof of financial assurances sufficient• to cover all such costs in a form
19 acceptable to ]Ecology.
20 Defendants shall adjust the financial assurance coverage and provide Ecology's project
21 coordinator with documentation of the Updated financial assurance for:
22 A. Inflation, annually, within thirty (30) days of the anni versary dale of the entry of
23 this Decree; or if applicable, the modified anniversary date established in accordance with this
24 Section; or if applicable, ninety `(90) days after the close of Defendants' fiscal year if the
25 financial test or corporate guarantee is used; and .
26
0 •
CONSI::N'i DECREE 23 A I I Dio' i\ GENERAL OF WASIIlNo wN
IicologY Division
I'O 1308 , 101 1')
Olympia. WA 98501-0117
1'AX (360)586-6760
• •
1 13. Changes in cost estimates, within thirty (30) days of issuance of Ecology's
2 approval of a modification or revision to the CAP that result in increases to the •cost or
3 expected duration of remedial actions. Any adjustments for inflation since the most recent
4 pl' :cedingg anniversary date shall be made concurrent with adjustments thr changes in cost
5 estimates. The issuance of Ecology's approval of a revised or modified CAP will. revise the
6 anniversary date established under this Section to become the date of issuance of such revised
7 or rnodified CAP.
8 XXII. INDEMNIFICATION •
9 Defendants agree, to the extent allowed by law; 10 indemnify and "save and hold the
10 State of Washington,' its employees, and agents harmless from any and all claims or causes of
11 action for death or injuries to persons or for loss or damage to property to the extent arising
12 . from or on account of acts or omissions of Defendants, its officers, employees, agents, or
13 contractors in entering into and implementing this Decree. However, Defendants shall not.
•
14 indemnily the State. of Washington nor save nor hold its employees and agents harmless from
15 any claims or causes of action to the extent arising, out of the negligent acts or omissions of the
16 State of Washington, or the employees or agents of the State, in entering, into or implementing
17 this Decree.
18 XXIII. COMPLIANCE WI'I'IU APPLICABLE LAWS
19 A. All actions carried out by Defendants pursuant to this Decree shall be done in
20 accordance with all applicable federal, stale, and meal requirements. including requirements to.
21 obtain necessary permits, except as provided in l:C W 70.10511090_ 'I he permits or other
22 federal, state or local requirements that the agency has determined are applicable and that are
23 known at the time of entry of this Decree have beer) identified in the CAP.
24 13. Pursuant to RCW 70.10511090(1), Defendants are exempt from the procedural
25 requirements of Chapters 70.94, 70.95, 70.105, 77.55, 90.48, and 90.58 RCW and of any laws
26 requiring or authorizing local government. permits or approvals. However, Defendants shall •
2 A'l1ORNIiY (. l NI:RAI.OI' WASI IINCll'ON •
CONSI ;N'I� llt :(;Rif: _.�1
Ecology Division
1 Iron 40117
• UI)•mpiu, \VA 9
FAX 060)5M-6700
. .. .
!1 . .
•
1 comply with the substantive requirements of such permits or approvals. The exempt permits or
2 approvals and the applicable substantive requirements of, those permits or approvals, as they
3 are known at the 1 me of entry of this 1)ec.ree, have been identified in the CJ\P.
4 Defendants have a continuing obligation to determine whether additional permits or
5 approvals addressed in RCW 70.105D.090(1) would otherwise be required for the remedial
6 action under this Decree. In the event either Ecology or I)efendants determine that additional
7 permits or approvals addressed in 17CW 70.1051;).090(1) would otherwise be required for the
8 remedial action under this Decree, it shall proniptly notify the other party of this determination.
9 Ecology shall determine whether Ecology or Defendants shall be responsible to contact the --
10 appropriate state and /or local agencies. If Ecology so requires, Defendants shall promptly
11 consult with the appropriate state and /or local agencies and provide Ecology with written
12 documentation I:ronl those agencies of the si.tbstantive requirements those agencies believe are
13 applicable to the remedial action. 1:,colog_y shall make the Iinal determination on the additional
4 `
1'1 stahst antive. rec.luirements That must be Traci by 1:)cfcndants and on how Defendants must meet
15 those requirements. Ecology shall iilforrn 1)cfcndants in writing of these requiremcent.s. Once .
16 established by Ecology, the additional requirements shall be enforceable. - requirements of this
17 Decree. Defendants shall not begin or continue the remedial action potentially subject to the
18 additional requirements until Ecology makes its final determination.
19 C. V tO 1ZC 70..10511090(2)., in the event Ecology determines that the
20 exemption from coillplyilaf? with the pi'ocediaral requirements of the laws referenced in I:C: W
21 70.1051).090(1) would result in the loss (if approval from a federal agency that is necessary for
22 the State to. administer any federal law, the exemption shall not apply and Defendants shall
23 comply with both the procedural and substantive r'egi.lirements of the laws referenced in R.CW
24 70.1051).090(1), including any requirements to obtain permits.
23
26
. 0 .
•
CONS1 ?.N1' 1)1 (.RI 1 25 Al'JORNi:v (1iNIatAL01' WASHINGTON
. 1 ?cology Division
PO Box 71)117
Olympia. OVA 08504-0117
FAX (:3(() 58(.6760 '
•
•
•
•
XXIV. REMEI)1AL ACTION COSTS
Defendants shall pay to Ecology costs incurred by Ecology pursuant to this Decree and
• 3 consistent with WA(' 173 - 340 - 550(2). These costs shall include work performed by Ecology
4 or its contractors for, or on, the Site wader Chapter 70.1 RCW, including remedial actions
5 and Decree preparation, negotiation, oversight and administration.. Those costs shall include
6 work performed both prior to and subsequent to the entry of this Decree. Ecology's costs shall
7 include costs of direct activities and support costs of direct activities as defined in WAC 173 -
1i 340- 550(2). Defendants shall pay the required amount within ninety (90) days of receiving
- 9 from an itemized of costs that includes a summary of costs incurred, an - —
10 identification of involved staff, and the amount of lime spent by involved staff members on the
11 project. A general statement. of work performed will be provided upon request. Itemized
12 statements shall be prepared quarterly. Pursuant to WAC 17 :3- 340. 550(4), failure to pay
13 13colo;gy's costs within ninety (90) days of receipt of the itemized statement of costs will result
14 in interest charges at the rate of twelve percent (12 %) per annum.. compounded monthly.
1,i Pursuant to RCW 70.1051:).055, Fcology has authority 16 recover unreimbursed
16 remedial action costs by tiling a lien against real property subject to the remedial actions.
17 X` V. IMPLEMENTATION f)I Iil?MEDI., t ,h�.' "1'If)10'
18 If t colocy determines that. Defendants have failed without wood cause to implement the
19 remedial action., in whole or in part, t.,cology may, alt;r notice 10 Defendants, perform any or
• 20 all portions of the remedial action) that remain incomplete. If hcology performs all or portions
21 of the remedial action because of Defendants' failure to comply with its obligations under this
22 Decree, Defendants shall reimburse Ecology for the costs of doing such work in accordance,
3 with Section XXIV (Remedial Action Costs), provided that Defendants are not obligated under
24 this Section to reimburse Ecology for costs incurred for work inconsistent with or beyond the
•
25 scope of this Decree.
26
.- . 1!
CONSENT D CREt. 26 n11( }RN�l:vcil.n °liunl.ol WASHINGTON
hcology Division
PO Iron 40117
Olympia, WA 985Qi -0117
FAX (360) 586 -6761)
•
•
1 Except where necessary to abate an emergency situation, Defendants shall not pertorm
2 any remedial actions at the Site outside those remedial actions required by this 1.)ecrce, unless
3 Ecology concurs, in writing, with such additional remedial actions pursuant to Section XV
4 (Amendment of Decree).
5 XXVI. PEIU(i)I)IC REVIEW
6 As remedial action, including groundwater monitoring, continues at the Site, the Parties
7 agree to review the progress of remedial action at the Site, and to review the data accumulated
8 as a result of monitoring the Site as often as is necessary and appropriate under the
9 circumstances (semi - annual groundwater monitoring of all wells). At least - e.very five (5) years
10 after the initiation of cleanup action at the Site the Parties shall meet to discuss the status of the
1 1 Site and the need, if any, Isar further remedial action at the Site. At least ninety (90) days prior
12 to each periodic review, Defendants shall submit a report to I:colo, y (hat documents whether
13 human health and the environment are being protected based on the factors set forth in \V AC
14 173 - 340. - 420(4). 1. eulogy reserves the right to require further remedial action al.the Site under
15 appropriate circumstances. This provision shall remain in effect air the duration .cif this
16 Decree.
17 Pl110..,IC PARTICIPATION
ION
18 A Public Participation Plan (Exhibit 1)) is required for this Site. geology shall review
19 any existing: Public. Participation Plan to determine its continued appropriateness and whether it
20 requires amendnmient, or if 00 plan exists, Ecology shall develop 0 Public Participation Plan
21 alone or in conjunction with Defendants.
22 Ecology shall maintain the responsibility for public participation at. the Site. However,
23 Defendants shall cooperate with Ecology, y, and shall:
24 A. If agreed to by Ecology, develop appropriate mailing list, prepare drafts of
25 public notices and tact sheets at important stages of the remedial action, such as the submission
26 of work plans, remedial investigat.ion /feasibility study reports, "cleanup action plans, and
411
CONSENT DECREE 77 AlI01Nt;vOLNERAI.ofWAS)muroN
IcoloI) Division
PO Bon 411117
Olympia, WA 985(3
1'AX (3GO) 5S6- (,760
•
1 engineering design reports. As appropriate, Ecology will edit, finalize, and distribute such fact
2 sheets and prepare and distribute public notices of Ecology's presentations and meetings.
3 13. Notify Ecology's project coordinator prior to the preparation of all press releases
4 and !act sheets, and before major meetings with the interested public and local governments.
5 Likewise, Ecology shall notify Defendants prior to the issuance of all press releases and fact
6 sheets, and before major meetings with the interested public and local governments. for all
7 press releases, fact sheets, meetings, and other outreach eliorts by Defendants that do not
8 receive prior Ecology approval, Defendants shall clearly indicate to its audience that the press
9 release, fact sheet, meeting, or other outreach effort was not sponsored or endorsed by - - .
10 Ecology.
11 C.'. When requested by Ecology, participate in public presentations on the progress
12 of the remedial action at the Site. Participation may be through attendance at public meetings
13 io assist in answering questions, or as a presenter.
•
14 1 ). When requested l:)y l.a:ology, arrange an.d!or continue information repositories at
15 the following locations:
16 i) Yakima Valley Regional Library
102 North 3'' Street.
17 Yakima, TWA 98901
18 ii) Ecology's Central Regional 01 :Tice
15 W. Yakima Avenue, Suite 200
1 Yakima, WA 98902
20 At a minimum, copies of all public notices, tact sheets, and press releases; a ll quality assured
21 monitoring data; remedial actions plans and reports, supplemental remedial planning
22 documents, and all other similar documents relating to performance of the remedial action
23 required by this Decree shall be promptly placed in these repositories.
74 XXVIII. -- DURATIONi OF DECREE
25 The remedial program required pursuant to this Decree shall be maintained and
26 continued until Defendants have received «written notification from Ecology that the
\"' RNE'iRAI. oi WAS)IIN(fl'ON S
coNSr:N•r r�t:c:tzta 2g w I r' GliNi
) �
Ecology Division
Po r3oN 410117
olymhia. \•VA 98Sfl l l) 117
FAX (3(0) 5S6.(,7oo
•
!0
1 requirements of this Decree have been satisfactorily completed. This Decree shall remain in
2 effect until dismissed by the Court. When dismissed, Section XVIII (Covenant Not to Sue)
3 and Section XIX (Contribution Protection) shall survive.
4 XXIX. CLAIMS AGAINST THE STATE •
5 Defendants hereby agree that they \Yi11 not seek to recover. any costs accrued in
6 implementing the remedial action required by this Decree from the State of Washington or any
7 of its agencies; and further, that Defendants will make no claim against the State Toxics
8 Control Account or any local Toxics Control Account for any costs incurred in implementing
9 this Decree. Except as provided above. however, Defendants expressly reserves its right to
10 seek to recover any costs incurred in implementing this Decree from any other P1P. This
11 Section does riot limit or address funding that may be provided under Chapter 173-322 WAC.
12 XXX. EFFECTIVE DATE
411 1:3 Ibis Decree. is effective upon the date it is entered by the Court.
•
14 XXXI. WITHDRAWAL OF CONSENT
1 S i the Court withholds or withdraws its consent to this Decree, it shall he null and void
16 • at the 01")11011 of any party and the aecom1:mnyin:. Complaint shall be dismissed withoi.li. costs
1 7 and without prejudice, In sh a0 event, no party shall he bound by the requirements of this
1 Decree.
19
S'1 A "Il O1' WASI:i.IN(3 "TON ROBERT 1 M. McKI;NNA
20 DPPARTM OF ECOLOGY Attorney General •
71
2 JIM P NDOWSKI J01-IN A. LEV7;1_,, WSBA r7 20439
• Program Manager Assistant Attorney General
23 Toxics Cleanup (360) 586 -6753
(360) 407 -7177
24
Date: Date:
25 •
26 CITY OF YAKIMA 6.OUN'1'Y OF YAKIMA
411
CONsF..N"1 DEcRE.E 29 A11ORNI;1 (1INIi1 Al OFWASIIIN(;1ON
I colog..Y Division
PO I s 410117
O l qm p i a. \Y,\ 9850.1-01 1 '7
FA X (360)586-6760
•
-~-
l
2
L^AVVKF,NCE VV&"[T[KS, YVSB& K 7454 JERRY /\USllN, VvSHA # 6708
3 Senior Assistant City Attorney Chief Civil Deputy Prosecuting Attorney
(509) 575-6030 (509) 574-1200
4
5 Date: Date:
6
CITY OF 'YAKIMA COUNTY OF YAKIMA
7
8
DICK ZAIS
9 City Manager Prnxidin County - C(inouimsiooer •
(509) 575-6030 (5UY)5/1 '1200
10
Date: Uu\o:
. 11
12
13
[NT[KEDthis 20 08.
14
}5
16 ]U|)U[C0K4M13SUNEK
Yakima County `1operi*«(\ood
17
|X
]9
20
21
22
23
24
25
26
CONSENT DECREE 0 ATToRNINGINERni.ov nAsixmaoisi
poom4mo7
Aympia. WA omw-0/n
m x(»wm641760
•