HomeMy WebLinkAboutWashington State Department of Transportation - Monitoring Well Agreement RE: IC No. 5 -39 -12935
SR. 82, East Yakima "Ave. Interchange
Agreement No. MW -05 -13546
Monitoring Well Agreement
This Monitoring Well Agreement is made effective this (i of J' '►E , 20 (y ,
between the WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, (WSDOT)
and CITY OF YAKIMA, (GRANTEE), a municipal corporation of the State of Washington.
RECITALS
A. WSDOT owns certain real property located in Yakima County known to be a
portion of the highway right of way of SR 82.
B. In conjunction with a voluntary clean up with Washington State Department of
Ecology (WSDOE) being conducted under the Model Toxics Control Act and applicable
regulations, including but not limited to, WAC 173 -340, WSDOE has recommended that the
GRANTEE install monitoring wells on WSDOT owned rights of way along State Route 82 in
Yakima County.
C. WSDOT is willing to grant to the GRANTEE a non - exclusive privilege of ingress
and egress over, across, and upon the land covered by this Monitoring Well Agreement upon the
terms and conditions contained herein.
D. WSDOT has an upcoming project in the vicinity of the monitoring wells and has
determined that the information provided by the wells will save WSDOT preconstruction funds
and has further determined that the information provided by the GRANTEE under this
agreement will alleviate the need for WSDOT to place wells in the vicinity in the future,
indicating a reduction in the standard rental rate, as outlined in the WSDOT Right of Way
Manual.
NOW, THEREFORE, in consideration of the terms, conditions, covenants and
performances contained herein, IT IS MUTUALLY AGREED THAT:
1. Premises. WSDOT properties subject to this Monitoring Well Agreement
(Agreement) are located in Yakima County and are known to be a portion of the highway right
of way of SR 82, East Yakima Ave. Interchange, sheets 2 & 3 of 12 sheets. The properties are
legally described as follows and shall hereinafter be collectively referred to as the Premises:
That portion of the Southeast 1/4 of the Northeast 1/4 and that portion of the Northeast 1 /4 of the
Southeast 1/4 of Section 18, Township 13 North, Range 19 East, W.M., Yakima County,
Washington, as shown on Exhibit A, attached hereto and by this reference incorporated herein.
2. Term. The term of this Agreement shall commence on the date of execution by
WSDOT and shall terminate five (5) years from the date of execution by WSDOT, unless the
RES 438 Page 1 of 13 I.C. No.5 -39 -12935
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parties agree in writing to extend the term, or this Agreement is terminated earlier as provided
elsewhere herein.
3. Consideration. Consideration for this Agreement is as follows: (a) GRANTEE
will perform environmental remediation work as recommended by WSDOE in that letter dated
May 2, 2014, attached hereto as Exhibit B and by this reference incorporated herein, and as may
be modified by WSDOE; (b) GRANTEE will perform in a legal manner any necessary clean -up
and disposal of any hazardous substance on the Premises; and (c) GRANTEE will provide
WSDOT Assistant Maintenance Superintendent and the Assistant Director of Property
Management Program designated herein, with copies of all reports, data, and analyses related to
its use of the Premises within thirty (30) calendar days of receipt of such reports, data, and
analyses.
4. Use of Premises. WSDOT grants to the GRANTEE a non - exclusive privilege of
ingress and egress over, across, and upon the Premises subject to the following provisions:
A. No use other than the installation, operation, monitoring, and maintenance
of the three (3) Monitoring Wells to be located on the Premises is permitted without the prior
written approval of WSDOT. The three (3) Monitoring Wells subject to this Agreement are
shown on Exhibit A, attached hereto and by this reference made a part hereof, and further
described as follows:
(1) Well No.GP27- Located on the western, unpaved shoulder of SR 82 between SRMP
32.53 and SRMP 32.52, 140 feet west of the L Line of SR 82, Eat Yakima Ave. Interchange,
sheet 2.
(2) Well No. Gp30- Located on the western, unpaved shoulder of SR 82 between SRMP
32.65 and SRMP 32.67, 150 feet west of the AR Line on SR 82, East Yakima Ave. Interchange,
sheet 3.
(3) Well No.GP31 Located on the western, unpaved shoulder of SR 82 between SRMP 32.75
and SRMP 32.80, 96 feet west of the L Line on SR 82, East Yakima Ave. Interchange, sheet 3.
(Hereinafter collectively referred to as the Wells.)
The parties may agree to remove one or more of the above listed well sites from this
Agreement by written amendment signed by both parties.
B. GRANTEE shall not permit any other party, except the GRANTEE's duly
authorized representatives, employees, and agents to access the Premises. The GRANTEE shall
be deemed an independent contractor for all purposes, and the employees of the GRANTEE or
RES 438 Page 2 of 13 I.C. No.5 -39 -12935
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any of its contractors, subcontractors, and employees thereof, shall not in any manner be deemed
employees of WSDOT.
C. GRANTEE shall maintain at its expense the structure or objects for which
this Agreement is granted in a condition satisfactory to WSDOT. Further, the GRANTEE shall
maintain, monitor, and decommission the Wells at its expense in accordance with Chapter
173 -160 WAC and any amendments thereto.
D. Access to the Premises shall be in accordance with the vehicle access as
shown on Exhibit C, and by this reference made a part hereof.
E. GRANTEE agrees to conduct its activities on the Premises in compliance
with all applicable laws, rules and regulations. Further, the GRANTEE is responsible for
obtaining, at its expense, all necessary permits from any other agencies having jurisdiction.
F. All use of the Premises shall be done to the satisfaction of WSDOT and
shall comply with the current Manual on Uniform Traffic Control Devices for Streets and
Highways (MUTCD). The GRANTEE shall leave the Premises in a secure, safe, neat, and clean
condition after each entry onto the Premises.
G. Use of the Premises is restricted to the hours between 9:30 a.m. and 2:00
p.m. Monday through Friday and no use is allowed Saturday, Sunday, or holidays, unless
authorized in advance and in writing by WSDOT Assistant Maintenance Superintendent. In
addition, the GRANTEE shall notify WSDOT Assistant Maintenance Superintendent at least
twenty four (24) hours prior to entry upon WSDOT property, including the Premises. Any
access to or use of the Premises shall be done in a manner as to not pose a hazard to travel on the
state highway or to the GRANTEE's employees or agents.
H. No lane closures are allowed except as approved in writing and in advance
by WSDOT Assistant Maintenance Superintendent. The approvals of such lane closures may
cause revisions of the terms of this Agreement, including but not limited to the hours of
operation and compensation to cover traffic management costs incurred by WSDOT, if any.
I. Except as provided elsewhere herein, upon termination of this Agreement
under any provision hereof, the improvements constructed by the GRANTEE on the Premises
shall be removed by the GRANTEE at the GRANTEE's expense in accordance with WAC 173-
160 -381, and the GRANTEE shall restore WSDOT's property to the original condition prior to
the GRANTEE's operations.
J. No drilling is allowed on the Premises without the prior written approval
of WSDOT Assistant Maintenance Superintendent.
K. GRANTEE shall perform the environmental remediation work on the
Premises as set forth in Section 10, and as may be further required by WSDOE.
RES 438 Page 3 of 13 1.C. No.5 -39 -12935
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L. GRANTEE shall notify WSDOT of completion of its work on the
Premises or a particular well site so that a final inspection by WSDOT may be made.
M. GRANTEE shall not alter, damage, or destroy any survey control
monuments located on the Premises. In the event the acts or omissions of the GRANTEE alter,
damage or destroy any such monument, the GRANTEE shall notify WSDOT immediately.
WSDOT shall reset or replace said monument and the GRANTEE agrees to reimburse WSDOT
for all costs incurred in this provision within thirty (30) calendar days of the date of WSDOT's
invoice.
N. This Agreement shall not be deemed or held to be an exclusive one and
shall not prohibit WSDOT from granting other rights of entry, permits, or other interests or rights
to other public or private companies or individuals, nor shall it prevent WSDOT from using any
of the Premises or affect its right to full supervision and control over all or any part of them,
none of which is hereby surrendered.
5. Termination. This Agreement may be terminated by either party upon not less
than thirty (30) calendar days written notice to the other party. In addition, WSDOT may
terminate this Agreement immediately if WSDOT determines that it is in the best interest of the
State of Washington to terminate this Agreement.
6. Nonapplicability of Relocation Assistance. GRANTEE acknowledges that this
Agreement does not at any time entitle the GRANTEE to assistance under the Uniform
Relocation and Real Property Acquisition Policy (Ch. 8.26 RCW).
7. Encumbrances. GRANTEE shall not encumber the Premises.
8. Personal Property. WSDOT shall not be liable in any manner for, or on account
of, any loss or damage sustained to any property of whatsoever kind stored, kept, or maintained
on or about the Premises, except for such claims or losses that may be caused by WSDOT or its
authorized agents or employees. Upon termination of this Agreement, WSDOT or its agent may
remove all personal property of the GRANTEE's remaining on the Premises at the GRANTEE's
expense and dispose of it in any manner WSDOT deems appropriate. The GRANTEE agrees to
reimburse WSDOT for the costs of such removal and disposal within thirty (30) calendar days of
the date of WSDOT's invoice.
9. Performance by WSDOT. If the GRANTEE defaults in the performance or
observation of any covenant or agreement contained in this Agreement, WSDOT, without notice
if deemed by WSDOT that an emergency exists, or if no emergency exists, with thirty (30)
calendar days prior written notice, may direct the GRANTEE to stop work and may itself
perform or cause to be performed such covenant or agreement. Such emergency shall include,
but not be limited to, endangerment of life, the highway facility or failure of the GRANTEE to
obtain in a timely manner the specified insurance coverage. The GRANTEE shall reimburse
RES 438 Page 4 of 13 I.C. No.5 -39 -12935
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WSDOT the entire cost and expense of such performance by WSDOT within thirty (30) calendar
days of the date of WSDOT's invoice. Any act or thing done by WSDOT under the provisions of
this section shall not be construed as a waiver of any agreement or condition herein contained or
the performance thereof.
10. Environmental Requirements.
A. GRANTEE represents, warrants and agrees that it will conduct its
activities on and off the Premises in compliance with all applicable environmental laws. As used
in this Agreement, the term "Environmental Laws" means all federal, state and local
environmental laws, rules, regulations, ordinances, judicial or administrative decrees, orders,
decisions, authorizations or permits, including, but not limited to, the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901, et. seq., the Clean Air Act, 42 U.S.C. § 7401, et seq., the
Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., the Emergency Planning and
Community Right to Know Act, 42 U.S.C. § 11001, et seq., the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq., the Toxic Substances
Control Act, 15 U.S.C. § 2601, et seq., the Oil Pollution Control Act, 33 U.S.C. § 2701, et seq.,
and Washington or any other comparable local, state or federal statute or ordinance pertaining to
the environment or natural resources and all regulations pertaining thereto, including all
amendments and /or revisions to said laws and regulations.
B. Toxic or hazardous substances are not allowed on the Premises without
the express written permission of WSDOT and under such terms and conditions as may be
specified by WSDOT. For the purposes of this Agreement, "Hazardous Substances," shall
include all those substances identified as hazardous under the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq., and the Washington
Model Toxics Control Act, RCW 70.105D et seq., including all amendments and /or revisions to
said laws and regulations, and shall include gasoline and other petroleum products. In the event
such permission is granted, the use and disposal of such materials must be done in a legal manner
by the GRANTEE.
C. GRANTEE agrees to cooperate in any environmental investigations
conducted by WSDOT staff or independent third parties where there is evidence of
contamination on the Premises, or where WSDOT is directed to conduct such audit by an agency
or agencies having jurisdiction. The GRANTEE will reimburse WSDOT for the cost of such
investigations, where the need for said investigation is determined to be caused by the
GRANTEE's operations. The GRANTEE will provide WSDOT with notice of any inspections
of the Premises, notices of violations, and orders to clean up contamination. The GRANTEE will
permit WSDOT to participate in all settlement or abatement discussions. In the event that the
GRANTEE fails to take remedial measures as duly directed by a state, federal, or local
regulatory agency within Ninety (90) calendar days of such notice, WSDOT may elect to
RES 438 Page 5 of 13 I.C. No.5 -39 -12935
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perform such work, and the GRANTEE covenants and agrees to reimburse WSDOT for all direct
and indirect costs associated with WSDOT's work where those costs are determined to have
resulted from the GRANTEE's use of the Premises. The GRANTEE further agrees that the use
of the Premises shall be such that no hazardous or objectionable smoke, fumes, vapor, odors, or
discharge of any kind shall rise above the grade of the right of way.
D. For the purposes of this Agreement, "Costs" shall include, but not be
limited to, all response costs, disposal fees, investigatory costs, monitoring costs, civil or
criminal penalties, and attorney fees and other litigation costs incurred in complying with state or
federal environmental laws, which shall include, but not be limited to, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq.; the Clean
Water Act, 33 U.S.C. § 1251; the Clean Air Act, 42 U.S.C. § 7401; the Resource Conservation
and Recovery Act, 42 U.S.C. § 6901; and the Washington Model Toxics Control Act, Ch.
70.105D RCW, et seq., including all amendments and /or revisions to said laws and regulations.
E. GRANTEE agrees to defend, indemnify and hold harmless WSDOT from
and against any and all claims, causes of action, demands and liability including, but not limited
to, any costs, liabilities, damages, expenses, assessments, penalties, fines, losses, judgments and
attorneys' fees associated with the removal or remediation of any Hazardous Substances that
have been released, or otherwise come to be located on the Premises, including those that may
have migrated from the Premises through water or soil to other properties, including without
limitation, the adjacent WSDOT property, and which are caused by or result from the
GRANTEE's activities on the Premises. The GRANTEE further agrees to retain, defend,
indemnify and hold harmless WSDOT from any and all liability arising from the offsite disposal,
handling, treatment, storage, or transportation of any such Hazardous Substances removed from
the Premises.
F. The provisions of this section shall survive the termination or expiration of
this Agreement.
11. WSDOT's Right of Entry and inspection. WSDOT, for itself, its agents and
contractors, and for the Federal Highway Administration, reserves the right to enter upon the
Premises at any time without notice to the GRANTEE for the purpose of inspection,
maintenance, construction, or reconstruction of the highway facility or any element thereof, or to
perform environmental audits as provided for elsewhere in this Agreement. Any loss of the use
of the Premises due to WSDOT's exercise of such right will be compensated for solely by a pro
rata reduction of rent. WSDOT shall in no way be responsible for any incidental or consequential
damages due to such loss of use, if any, by the GRANTEE. WSDOT and the Federal Highway
Administration may from time -to -time go upon the Premises for the purpose of inspecting any
excavation, construction, or maintenance work being done by the GRANTEE.
RES 438 Page 6 of 13 I.C. No.5 -39 -12935
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12. Indemnification.
A. GRANTEE will protect, save and hold harmless WSDOT, its authorized
agents and employees, against all claims, actions, costs, damages or expenses of any nature
whatsoever, by reason of the acts or omissions of the GRANTEE or its representatives, agents,
contractors, and employees arising out of or in connection with acts or activities on the Premises.
The GRANTEE further agrees to defend WSDOT, its agents and employees in such claims or
actions, including but not limited to, attorney fees and costs, arising out of or in connection with
the acts or omissions of the GRANTEE or its representatives, agents, contractors or employees
on the Premises. The obligations in this paragraph shall not include such claims, costs, damages
or expenses to the extent caused by the acts of WSDOT or its authorized agents or employees;
Provided, that if the claims or damages are caused by or result from concurrent acts of (a)
WSDOT, its agents or employees, and (b) GRANTEE its agents or employees, or involves those
actions covered by RCW 4.24.1 15, this indemnity provision shall be valid and enforceable only
to the extent of the acts or omissions of the GRANTEE and its representatives, agents,
contractors, or employees.
B. GRANTEE specifically assumes potential liability for actions brought by
the GRANTEE's own employees against WSDOT and, solely for the purpose of this
indemnification and defense, the GRANTEE specifically waives any immunity under the state
industrial insurance law, Title 51 RCW, which waiver has been mutually negotiated by the
parties.
C. The provisions contained in this section shall survive the termination or
expiration of this Agreement.
13. Insurance.
A. GRANTEE warrants that it is self - insured, and agrees to provide
acceptable evidence of its self- insured status to WSDOT. The GRANTEE's insurance policy
must provide liability coverage for the Premises, including public liability coverage for bodily
injury, property damage, and personal injury of not less than Two Million and no /100 Dollars
($2,000,000.00) combined single limit per occurrence, with a general aggregate amount of not
less than Four Million and no /100 Dollars ($4,000,000.00) per policy period. The GRANTEE
shall increase the policy limits at its sole cost, when and if WSDOT deems it necessary due to
the GRANTEE's use of the Premises.
B. GRANTEE assumes all obligations for premium payment, and in the
event of nonpayment, the GRANTEE is obligated to reimburse WSDOT the cost of maintaining
the insurance coverage and any legal fees incurred in enforcing such reimbursement should the
GRANTEE fail to pay the policy premiums.
RES 438 Page 7 of 13 I.C. No.5 -39 -12935
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C. Coverage, if obtained by the GRANTEE in compliance with this section,
shall not be deemed as having relieved the GRANTEE of any liability in excess of such
coverage.
D. In the event the GRANTEE, after commencement of this Agreement,
elects to terminate its self - insured status and secure commercial liability coverage, the
GRANTEE will promptly notify WSDOT, and provide a certificate of insurance from an insurer
licensed to conduct business in the State of Washington, in the amounts and types as set forth in
Section 13 A. above. Further, the GRANTEE shall provide a certificate of insurance within Ten
(10) calendar days of receiving a written notice from WSDOT for an increase in the coverage
amounts.
14. Additional Construction Prohibited. No new construction by the GRANTEE is
permitted for the duration of this Agreement, except as may be approved in advance and in
writing by WSDOT. The installation of the monitoring wells as set forth in Exhibit A, are
hereby approved by WSDOT.
15. Nondiscrimination. GRANTEE for itself, its successors and assigns, as part of
the consideration hereof, does hereby agree to comply with all applicable civil rights and
antidiscrimination requirements, including, but not limited to, Chapter 49.60 RCW.
16. Assignment. GRANTEE may assign this Agreement to a successor
governmental entity having responsibility for monitoring groundwater quality, with the prior
written approval of WSDOT Assistant Director, Property Management Program.
17. Surety Bond. GRANTEE shall provide WSDOT with a surety bond in the
amount of $10,000.00 written by a surety company authorized to do business in the State of
Washington. The surety bond shall be for work related to the removal of the Wells. The bond
shall be furnished to WSDOT upon execution of this Agreement and shall remain in force until
released in writing by the WSDOT Assistant Director, Property Management Program.
18. Modifications. This Agreement contains all of the agreements and conditions
made between the parties hereto pertaining to the Premises and may not be modified orally or in
any manner other than by written agreement signed by all parties. Failure on the part of WSDOT
to enforce any covenant or provision herein contained shall not discharge or invalidate such
covenant or provision or affect the right of WSDOT to enforce the same in the event of any
subsequent breach or default.
19. Interpretation. This Agreement shall be governed and interpreted in accordance
with the laws of the State of Washington. The titles to paragraphs or sections of this Agreement
are for the convenience only and shall have no effect on the construction or interpretation of any
part hereof.
RES 438 Page 8 of 13 I.C. No.5 -39 -12935
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• 20. Binding Agreement. It is understood and agreed that delivery of this Agreement
is hereby tendered and that the terms and obligations hereof shall not become binding upon the
State of Washington unless and until accepted and approved hereon in writing for the State of
Washington, Department of Transportation, by the Property Management Program Manager.
21. Attorneys' Fees. In the event of any controversy, claim, or dispute arising out of
this Agreement, each party shall be solely responsible for the payment of its own legal expenses,
including but not limited to, attorney's fees and costs.
22. Severability. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this
Agreement shall he construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
23. Venue. GRANTEE agrees that the venue of any action or suit concerning this
Agreement shall be in the Thurston County Superior Court and all actions or suits thereon shall
be brought therein, unless applicable law requires otherwise.
24. Totality of Agreement. It is understood that no guarantees, representations,
promises, or statements expressed or implied have been made by WSDOT except to the extent
that the same are expressed in this Agreement.
25. Authority. GRANTEE warrants that the person executing this Agreement on
behalf of the GRANTEE has been duly authorized to execute this Agreement on behalf of the
GRANTEE.
26. Notices. Wherever in this Agreement notices or information are to be given, they
will be served, personally delivered or sent by certified or overnight mail addressed to the parties
at the address listed below unless a different address has been designated in writing and
delivered to the other party:
DEPARTMENT OF TRANSPORTATION (Mailing Address)
Attn.: Property Management Program Manager
P. O. Box 47338
Olympia, WA 98504 -7338
DEPARTMENT OF TRANSPORTATION (Physical Address)
Real Estate Services
Attn.: Property Management Program Manager
7345 Linderson Way SW
Tumwater, WA 98501 -6415
RES 438 Page 9 of 13 I.C. No.5 -39 -12935
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AND DEPARTMENT OF TRANSPORTATION
Assistant Maintenance Superintendent
2809 Rudkin Road
Union Gap, WA 98903 -1648
GRANTEE: CITY OF YAKIMA
Engineering Division
Attn: Brett Sheffield, PE Chief Engineer
129 North Second Street
Yakima, WA 98901 -2613
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
RES 438 Page 10 of 13 1.C. No.5 -39 -12935
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1 1
Signatures:
Accepted and Approved by:
CITY OF YAKIMA
WASHINGTON STATE
DEPARTMENT OF TRANSPORTATION
By:
€
hltle: , i — By: — ���
Cynt is " r: y, • roperty
Dated: 5 - 1p - / S Management Program Manager
•
Dated: VIE (l ('5
ci r CONTRACT NO-2 68
RESOLUTION NO:. ii,q
APPROVED AS TO FORM
By: �. `
Assistant Attorney Ge eral
Dated: j u , 20 lS
RES 438 Page 11 of 13 I.C. No.5 -39 -12935
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WSDOT ACKNOWLEDGMENT
STATE OF WASHINGTON )
COUNTY OF THURSTON )
On this I 1 day of ,AULLF, , 20 S before me personally appeared C-
'Su-"- Cynthia Tremblay, to me known to be the duly appointed Property Management Program
Manager, and that she executed the within and foregoing instrument and acknowledged the said
instrument to be the free and voluntary act and deed of said State of Washington, for the uses and
purposes therein set forth, and on oath states that she was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
1 1 day of , _Nal -; , 201S .
(Si' nature
. ���F (Print or type name)
=/ $ 4 E '°. 9 0 tZ' � Notary Public in and for the State of Washington
1 to NOTARI `t : ; residing at '� 0 0' , .j _
"' _ = My commission expires ) ( .
,9 2 •'
s, .1:... OF wAso ..
*4 4481s 11111..
•
RES 438 Page 12 of 13 I.C. No.5 -39 -12935
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AGENCY ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss •
COUNTY OF YAKIMA )
On this -26 - day of / , 20 / s' before me personally appeared
7nI O > ko ,.i , J e to me known to be the duly appointed
(:-` Me; h d r , and that he /she executed the within and
foregoing instrument and acknowledged the said instrument to be his /her free and voluntary act
and deed of said city of Yakima, for the uses and purposes therein set forth, and on oath Lessees
that he /she was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
� day of j Lai ,20 /5 .
aut_j_
(Signature)
KAARRE ALLYN D
Notary Public c�
4 State of Washington Vr�
My Co:Flisto2no.,,kpire: ••
(Print or type name)
A Notary Public in and for the State of Washington
residing at '/a (t - , LNj,
My commission expires i-( II rp-o / Co
RES 438 Page 13 of 13 I.C. No.5 -39 -12935
REV. 7/2014
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Exhibit B
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IC 5 -39 -12935
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Isa9 ,0
MW-05 -13546 STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY
15 W Yakima Ave, Ste 200 • Yakima, WA 98902 -3452 • (509) 575 -2490
May 2, 2014
RECEIV
C D
lig 05 2014
Joan Davenport
City of Yakima Cascadia Law
129 North 2nd Street GroLP PLLC
Yakima, WA 98901
Re: Further Action at the following Site:
• Site Name: Interstate 82 Exit 33A Yakima City Landfill
• Site Address: 805 N. 7th St., Yakima
(Parcels 191318 -41001 and 191318- 42001)
• Facility /Site No.: 1927
• VCP Project No.: CE0406
Dear Ms. Davenport:
The Washington State Department of Ecology (Ecology) received your request for an opinion on
your independent cleanup of the Interstate 82 Exit 33A Yakima City Landfill facility (Site). This
letter provides our opinion. We are providing this opinion under the authority of the Model
Toxics Control Act (MTCA), Chapter 70.105D RCW.
Issue Presented and Opinion
Is further remedial action necessary to clean up contamination at the Site?
YES. Ecology has determined that further remedial action is necessary to clean up
contamination at the Site.
This opinion is based on an analysis of whether the remedial action meets the substantive require-
ments of MTCA, Chapter 70.105D RCW, and its implementing regulations, Chapter 173 -340
WAC (collectively "substantive requirements of MTCA "). The analysis is provided below.
Description of the Site
This opinion applies only to the Site described below. The Site is defined by the nature and
extent of contamination associated with the following release:
1 1
Joan Davenport
City of Yakima
May 2, 2014
Page 2
• Unknown hazardous substances into the soil (no soil samples were collected or analyzed).
• Lead, chromium, arsenic, iron, manganese, sodium, nitrate, vinyl chloride, and low pH into
the groundwater. Other hazardous substances may also be present where initial screening
laboratory method detection limits (MDLs) were above MTCA cleanup levels.
Please note a parcel of real property can be affected by multiple sites. The Boise Cascade Mill
facility (# 450) also affects parcel(s) of real property associated with this Site. This opinion does
not apply to any contamination associated with the Boise Cascade Mill facility.
Basis for the Opinion
This opinion is based on the information contained in the documents listed below:
I. SLR International Corporation, July 17, 2012. Soil Vapor and Groundwater Sampling
Report — May 2012 Event, Closed City of Yakima Landfill, Yakima, Washington
2. SLR International Corporation, March 17, 2010. Additional Investigation Report, Closed
City of Yakima Landfill Site
3. International Corporation, October 12, 2009. Remedial Investigation Report, Closed City
of Yakima Landfill Site
4. Parametrix, October 2008, Phase II Environmental Site Assessment, Former City of
Yakima Municipal Landfill, Yakima, Washington
5. Contents of Ecology site file
Those documents are kept at the Central Regional Office (CRO) of Ecology for review by
appointment only. You can make an appointment by calling the CRO resource contact (509)
575 -2490.
This opinion is void if any of the information contained in those documents is materially false or
misleading.
Analysis of the Cleanup
Ecology has concluded that further remedial action is necessary to clean up contamination at
the Site. That conclusion is based on the following analysis:
a
Joan Davenport
City of Yakima
May 2, 2014
Page 3
1. Characterization of the Site.
The focus of this opinion letter, at the request of the City of Yakima, is to provide an
opinion regarding the remedial investigation previously conducted at the Site. •
Ecology has determined your characterization of the Site is not sufficient to select a
cleanup action.
The Site is described as releases associated with a former municipal landfill that operated
during the 1960s. It is important to note that groundwater contamination may be
comingled with plumes associated with the upgradient Boise Cascade Mill site.
In February 2008, a Phase II site assessment was conducted and work consisted of a
geophysical survey, 14 test pits, two soil borings, installation of one new monitoring
well, three soil vapor probes, and collecting samples from three monitoring wells. A
rough lateral extent of the municipal solid waste (MSW) was delineated. Iron,
manganese, and vinyl chloride were detected in groundwater above MTCA Method B
cleanup levels. Soil vapor concentrations of methane were found near the boundaries of
the MSW above the lower explosive limit (LEL), including the plywood plant building.
No soil samples were ever analyzed for any of the contaminants of concern.
In October 2009 through May 2012, a remedial investigation was conducted and work
consisted of 56 test pits to delineate lateral extent of the MSW, 41 soil borings to define
vertical extent of the landfill, five temporary monitoring wells to assess groundwater
quality, 20 soil vapor probes, installation of eight new monitoring wells for continued
monitoring of groundwater, and sampling of 11 monitoring wells. Based on the
investigation, the landfill is estimated to hold —408,500 cubic yards of MSW. Arsenic,
iron, manganese, sodium, nitrate, and low pH were detected in groundwater above
MTCA cleanup levels. Soil vapor concentrations of methane were found above the LEL
near the boundary of the MSW at the plywood plant building and the eastern boundary of
the landfill. Besides limited sampling for disposal purposes, no soil samples were
analyzed during this investigation.
No investigation of soil contamination has occurred. Contaminants have not been
assessed in soil and the lateral and vertical extent of any soil contamination has not been
characterized.
Joan Davenport
City of Yakima
May 2, 2014
Page 4
The extent of MSW along the eastern boundary (Interstate 82) of the landfill has not been
fully characterized. Soil gas vapor concentrations for methane have also not been
collected for this area.
The lateral and vertical extent of groundwater contamination has not been fully
characterized. More groundwater monitoring wells may be needed to provide for full
characterization. , Ecology recommends shorter well screen lengths to yield more
representative results (10 ft. instead of 15 ft.). Well screen lengths not exceeding 10 ft.
are also recommended by the EPA's MSW Landfill Criteria Technical Manual.
The laboratory MDLs of previous groundwater sampling for some hazardous substances
were above MTCA cleanup levels. Examples of these in the 2008 study include arsenic,
lead, polychlorinated biphenyls (PCBs), carcinogenic poly aromatic hydrocarbons
.(cPAHs), ethylene dibromide (EDB), pentachlorophenol (PCP), and other volatile
organic compounds (VOCs) /semi- volatile organic compounds (SVOCs). Examples in the
2009 study include EDB, PCP, cPAHs, bis(2- ethylhexyl) phthalate, and other
VOCs /SVOCs. Ecology does not consider this data to be representative of Site
conditions. Contaminants of concern cannot be eliminated where the MDLs exceeded
MTCA cleanup levels.
Ecology recommends conducting at least four consecutive quarters of groundwater
monitoring for the entire well network, including any new wells, associated with the Site.
This should include all hazardous substances likely to be encountered at a MSW landfill
site, including, but not limited to, those previously screened for the Site.
These hazardous substances should include, but are not limited to:
- Total petroleum hydrocarbons (TPH)
o Hydrocarbon Identification (HCID)
o Gasoline range hydrocarbons (GRO)
o Diesel range hydrocarbons (DRO)
o Heavy Oils
o Mineral Oil
- VOCs
SVOCs
- PCBs
- Metals (total and dissolved)
- Chlorinated pesticides
- General Chemistry (Conventionals)
o At a minimum nitrate and pH
Joan Davenport
City of Yakima
May 2, 2014
Page 5
The reports received for the 2009, 2010, and 2012 remedial investigations did not include
a copy of the sampling and analysis plan (SAP) and quality assurance project plan
(QAPP). If requested, Ecology can review and comment on these documents under the
VCP program before further remedial investigation takes place. It is also helpful if the
SAP /QAPP is included with the final report so that Ecology has it for reference while
preparing the VCP opinion.
2. Establishment of cleanup standards.
Ecology has determined the cleanup levels you established for the Site meet the
substantive requirements of MTCA. A point of compliance for soil and groundwater has
not been established for the Site.
a. Cleanup levels.
The use of MTCA Method A and B soil and groundwater cleanup levels for Unrestricted
Land Uses are appropriate throughout the Site.
b. Terrestrial Ecological Evaluation (TEE).
The TEE is required to be completed. If appropriate, please provide the basis and
supporting documentation for an exemption from the TEE process.
3. Selection of cleanup action.
No cleanup action has been selected for the Site.
4. Cleanup.
No significant cleanup has occurred at the Site. A small amount of MSW may have been
removed and disposed of at either the Terrace Heights or Cheyne Landfills during
construction of the freeway off -ramp in 1996.
5. Professional License Requirements .
Any site investigation/cleanup document containing geologic or engineering work
(generally, interpretation of geologic or groundwater data, design calculations, plans, or
as -built plans) must be submitted under the seal of the appropriately licensed
professional.
•
Joan Davenport
City of Yakima
May 2, 2014
Page 6
6. Environmental Information Management System (EIM)
In accordance with WAC 173 - 340 - 840(5) and Ecology Toxics Cleanup Program Policy
840 (Data Submittal Requirements), data generated for Independent Remedial Actions
shall be submitted simultaneously in both a written and electronic format. For additional
information regarding electronic format requirements, see the website
http://www.ecy.wa.gov/eim.
Data must be submitted to Ecology in this format for Ecology to issue a No Further
Action determination.
An EIM data submittal has been received for the 2009, 2010, and 2012 remedial
investigations for this Site.
Please submit any additional data that is collected.
Limitations of Opinion
1. Opinion does not settle liability with the state.
Liable persons are strictly liable, jointly and severally, for all remedial action costs and
for all natural resource damages resulting from the release or releases of hazardous
substances at the Site. This opinion does not:
® Resolve or alter a person's liability to the state.
® Protect liable persons from contribution claims by third parties.
To settle liability with the state and obtain protection from contribution claims, a person
must enter into a consent decree with Ecology under RCW 70.105D.040(4).
2. Opinion does not constitute a determination of substantial equivalence.
To recover remedial action costs from other liable persons under MTCA, one must
demonstrate that the action is the substantial equivalent of an Ecology- conducted or
Ecology- supervised action. This opinion does not determine whether the action you
performed is substantially equivalent. Courts make that determination. See RCW
70.105D.080 and WAC 173- 340 -545.
Joan Davenport
City of Yakima
May 2, 2014
Page 7
3. State is immune from liability.
The state, Ecology, and its officers, and employees are immune from all liability, and no
cause of action of any nature may arise from any act or omission in providing this
opinion. See RCW 70.105D.030(1)(i).
Contact Information
Thank you for choosing to clean up the Site under the Voluntary Cleanup Program (VCP). After
you have addressed our concerns, you may request another review of your cleanup. Please do
not hesitate to request additional services as your cleanup progresses. We look forward to
working with you.
For more information about the VCP and the cleanup process, please visit our web site: www.
ecy.wa.gov /programs /tcp /vcp /vcpmain.htm. If you have any questions about this opinion, please
contact me by phone at (509) 454 -7835 or e -mail at matthew.durkee @ecy.wa.gov.
Sincerely,
afukv-
Matthew Durkee, LG.
Site Manager
CRO Toxics Cleanup Program
cc: Dolores Mitchell, Ecology
Dennis Radocha, OfficeMax Inc.
Mike Staton, SLR International Corporation
bmtPers'o ", Cascadia Law Group
Greg Demers, LeeLynn, Inc., & Wiley Mt., Inc.
Brad Hill, LeeLynn, Inc., & Wiley Mt., Inc.
Jenifer Hill, WSDOT
Jason Smith, WSDOT
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Access to GP 27 and GP 30 will be from the Boise Cascade Property to the east. Access to GP 31 will be from the eastbound off ramp from 1 -82 — Exit 33A.
The gas probes shown on this aerial are approximate locations and are shown to reflect the access to each probe.
Exhibit C
IC 5 -39 -12935
MW -05 -13546