Joel S. Hirschhorn, Ph.D.
for Olympic Environmental Council
March 29, 1999
[Funding for this work was provided by a public participation
grant from the Washington State Department of Ecology. This material
was reviewed for consistency with the purposes of the grant only;
grant funding does not constitute endorsement of opinions or
recommendations expressed herein.]
Summary
If the Tribe believed that signing this Agreement was in their best
interests because it was the best deal available regarding the
cleanup of the Rayonier mill site in Port Angeles, then it was sadly
mistaken or it was seriously deceived by government officials. The
most important aspect of this agreement is that the Tribe may support
state control of the Rayonier mill site cleanup rather than EPA
control under the federal Superfund program.
But this support is contingent on the Tribe obtaining "sufficient
funding" from Rayonier to support its involvement. Even though
Governor Locke has announced the agreement with the Tribe and his
decision to not support federal control of the cleanup, the Tribe has
not yet concluded its deal for funding with Rayonier. If that deal is
consummated, then the Tribe's agreement with the state gets it the
right to give or withhold concurrence with state decisions. But
giving the Tribe power over the state through the concurrence
provision could be challenged in court.
What the Tribe apparently has not realized is that trading away
federal control almost certainly means losing a more comprehensive,
higher quality cleanup. Any close examination of available materials
about the Rayonier case, including a draft agreement already written
by Rayonier to be used as the basis of the cleanup under state
control clearly shows that Rayonier is convinced that it can greatly
reduce its cleanup costs if the state is in control. No element of
the agreement the Tribe has signed provides assurance that the plans
of Rayonier to greatly limit the extent of cleanup will be blunted.
Most significantly there is no explicit language in the agreement
regarding full cleanup of Port Angeles Harbor - Strait of Juan de
Fuca sediments and contaminated residential areas in Port Angeles. On
March 26, 1999 Governor Locke announced his recommendation to EPA to
not list the Rayonier site on the federal National Priorities List
and said that it was based "on key agreements the state Department of
Ecology achieved with the Lower Elwha Klallam Tribe and Rayonier."
However, in addition to the Tribe reaching an agreement with Rayonier
for funding EPA must formally issue a deferral agreement. This
analysis shows, however, that EPA is under no obligation whatsoever
to accept the recommendation of the Governor and that there is ample
reason for EPA to follow its own deferral guidance and reject the
state's desire to avoid making the Rayonier site a federal
cleanup.
Was the Tribe deceived?
There are various bureaucratic reasons why EPA might not want another
Superfund site to manage, especially one with so much public
controversy. But EPA's required scientific evaluation had found the
site qualified for the Superfund remedial cleanup program, forcing
EPA to notify the Governor of its intent to formally list the site on
the National Priorities List. However, EPA knew that the state and
Rayonier wanted to keep the cleanup out of the Superfund program. But
there clearly was also a strong citizen group, the petitioners who
had compelled EPA to assess the Rayonier the site, that could it make
it difficult for EPA to not implement its own findings. One way out
of this uncomfortable situation was for EPA to facilitate and
strengthen the state's case against federal control. Despite the
letter to the Governor from Region 10 Administrator Chuck Clarke
(Jan. 25, 1999) informing him about the site being serious enough to
merit placement on the NPL, it is now known that EPA Region 10 held a
meeting between themselves, DOE and the Tribe on February 22, 1999 at
which it informed the Tribe that EPA wanted to defer cleanup control
to the state and not pursue NPL listing.
At that meeting EPA may have conveyed this message to the Tribe in
order to remove a political problem for the Governor by getting the
Tribe to believe that its only and best strategy was to work out a
deal with the state and Rayonier. If this was the case, unfortunately
the Tribe did not see this message as a political ploy that could
only be credible and successfully implemented IF the Tribe sided with
the state. In large measure the situation was like a poker game where
two of the three players (EPA and the state) bluffed a strong hand
which the Tribe believed and capitulated to. In fact, if the Tribe
supported EPA's written intention to list the Rayonier site, then it
would be difficult for the state and Rayonier to prevail and very
difficult for EPA to avoid listing the Rayonier site.
It must be emphasized that Administrator Clarke informed Governor
Locke that "As part of the Superfund listing process, it is EPA's
policy to request support from the Governor of the State in which the
site is located." Under current law and policy, however, a Governor
does not have to give such support in order for EPA to list a site.
Indeed, the Governor's March 24, 1999 letter to Administrator Clarke
said that the Governor did not "endorse" such a designation, but
favored a state-led cleanup. Moreover, Administrator Clarke had
explicitly cited a number of reasons why EPA wanted to list the
Rayonier site on the NPL, and it noted that the U.S. Department of
Interior, as a natural resource trustee under the Superfund law, also
supported NPL listing. There is no statement in the EPA letter that
in any way said or indicated that EPA cannot list the Rayonier site
if the Governor objects to the listing.
The most recent document from EPA headquarters on the issue of NPL
listing and the role of states and tribes is a July 25, 1997
memorandum from Timothy Fields to Regional Administrators. The stated
purpose of that document was "to outline the process that will be
employed when the State does not agree that a site should be listed,
but the Region believes it has sufficient reasons to proceed with the
NPL listing process." Clearly, Administrator Clarke has already made
the case in writing for having sufficient reasons to proceed with NPL
listing. Nowhere in the headquarters document is there any indication
that a state can unilaterally deny NPL listing. If a regional EPA
office cannot resolve a difference between its view about listing
with objections by a state, then the headquarters document indicated
that the Assistant Administrator for the Office of Solid Waste and
Emergency Response "will then decide whether to pursue NPL listing"
after giving a state "the opportunity to present its position in
writing." It was also noted that EPA could provide "an appropriate
deadline for a response, but the State does not respond. In such a
case, EPA may proceed with the NPL listing process."
Moreover, in the letter to Governor Locke Administrator Clarke very
explicitly summarized the substantial rights of the Tribe and said:
"NPL designation would also ensure that clean up would be protective
of Treaty Fisheries and protect the Tribe's authority as a natural
resources trustee." He also acknowledged that "the Tribe will be
involved in all Superfund activities as a consulted government
agency. Therefore, the Tribe will be included as a signatory to
Superfund cleanup agreements." Also, Administrator Clarke recounted
how EPA had already entered into a Memorandum of Understanding with
the Tribe covering site assessment, including funding, and that,
given NPL listing, how that agreement "would be amended to address
all remedial activities under Superfund." All of this supports the
view that the Tribe had the capability to obtain as much from EPA as
from the state.
Tribe standing in the federal Superfund program
What the Tribe should have given more consideration to was this: Is
there really anything gained from its agreement with the state that
it could not have also obtained from using its very strong position
within the federal legal CERCLA framework if the Rayonier site was
made an NPL site? It is especially significant that EPA Region 10 has
already officially concluded that the site's Hazard Ranking System
score was sufficient to place the site on the NPL. Such an agreement
with the state might have made sense in a situation where it seemed
highly unlikely that the site could qualify for the NPL. But this
agreement was entered into AFTER EPA Region 10 notified the Governor
that the site qualified for the NPL and, as presented above, after
Administrator Clarke had clearly specified the extensive rights of
the Tribe that would be protected if the Rayonier site was listed.
Why did the Tribe believe some verbal statements by EPA Region 10
officials that contradicted the extensive, previous written
statements by Administrator Clarke? Why did the Tribe not recognize
the inability of the state of Washington to prevent NPL listing of
the Rayonier site? There are no obvious, logical answers to these key
questions.
Another key question that should have been thoroughly considered was
this: Why would the Tribe discount the considerable objections to
state control of the Rayonier cleanup by the group of citizen
petitioners who had successfully engaged EPA and caused Region 10 to
conclude that the site merited NPL listing? The existing formal EPA
headquarters guidance on deferral of NPL listing determinations
submitted to the regional offices in May 1995 explicitly said the
following:
"If, at any time before a site is deferred to the State, the Region,
after consulting with the State, determines that the community or
other parties have significant, valid objections to the deferral that
cannot be resolved, the Region should not defer the site."
The guidance also explicitly acknowledged that:
"EPA will not defer such a site to a State unless the affected
Tribe(s) agrees to the deferral through a three-party agreement with
the State and the Region."
In view of all of these EPA policies, it is difficult to comprehend
why the Tribe has signed the agreement with the state. If the Tribe
joined with the citizen petitioners in supporting listing the
Rayonier site, it is difficult to imagine how EPA could acquiesce to
a request from the state to deny NPL listing, even if various other
parties supported the state's position.
Misconception about EPA intervention
In large measure it appears that the Tribe believes it has created
some type of safety net for its interests, because even though it is
supporting an EPA decision to let the state be in charge of the
necessary cleanup it also believes that if things go wrong it can
easily bring EPA back into the picture. The Tribe is wrong. Once EPA
acquiesces to a request by the Governor to not list the site on the
federal National Priorities List (NPL), which will greatly be
facilitated by the Tribe's support of state control, the state will
be completely able to apply its own legal and regulatory framework.
The Tribe may be confused because an option that is preempted by the
agreement is making the Rayonier site a Superfund NPL site, but
allowing the state to be the lead agency. In that option, EPA retains
legal responsibility and the cleanup is implemented under Superfund
procedures and requirements, but by the state rather than directly by
EPA.
But once EPA decides to not list a site and gives cleanup control to
a state, the site is totally outside the Superfund system and the
state decides what is an acceptable cleanup. It is virtually
inconceivable that sufficient hard evidence could ever be obtained to
document a totally corrupt or incompetent cleanup performed under
state control. It is technically implausible to obtain evidence that
a state cleanup is completely ineffective, mainly because it is
always easy for any government agency to argue that its approved
actions are sufficient to protect public health and environment. It
is also politically inconceivable that having once given the state
control that EPA Region 10 would then disgrace the state by
concluding that the state completely compromised the public interest.
The state could litigate the matter.
The Tribe is also wrong in placing emphasis on the potential for
"seeking review and technical assistance from the EPA in responding
to proposed decisions." Why would EPA Region 10 use its limited
resources on a site that was no longer in the federal Superfund
program? Indeed, under what legal authority could it use its
personnel and budget for a state cleanup? EPA could not recover its
costs from Rayonier, because there would be no legal requirement for
Rayonier to provide such funding to EPA. It is inconceivable that EPA
would expend significant resources on responding to such a request
and EPA would certainly be very sensitive to providing anything that
would be viewed by the state as contesting state decisions.
This author certainly has seen occasions where states have sought
some very limited technical reviews or advice from EPA offices for
narrow aspects of state cleanups. But this is very different than
believing that EPA would attempt to take away control of a cleanup
from a state agency. Indeed, it would be very difficult to accomplish
legally. The Tribe's belief that EPA stands ready to jump into a
complex state cleanup process and side with the Tribe's objections
and possibly begin the process of NPL listing again is unfounded.
Interestingly, the press release from the Governor's office of March
26, 1999, which announced that Governor Locke had recommended that
EPA not list the Rayonier site, said: "EPA would review the status of
the cleanup annually. In case of dispute, the tribe would be able to
request that EPA assume authority for the cleanup under the Superfund
process." But viewing such an EPA activity as anything more than a
superficial, perfunctory activity is unduly optimistic. EPA might
prepare some limited technical reviews, but it would not likely
attempt to disrupt state control and actions. What is interesting is
that these statements from the Governor are based on the 1995 EPA
guidance on deferral of cleanups to sites, which also includes the
strong basis for denying deferral of a cleanup to a state when there
are significant objections to it.
Who is the real beneficiary of state control of the Rayonier
cleanup?
Reasonable people should always ask why some states fight so hard to
keep sites out of the federal Superfund system. In this case, the
chief beneficiary of giving the state control over the cleanup is
Rayonier, and the company has forcefully been using every possible
tactic to gain support for state control. Why? Money. This is all
about saving money for Rayonier. But saving money for Rayonier
inevitably means a lower quality, less comprehensive cleanup. Other
arguments, such as a faster cleanup under state control have little
merit. Beyond the fact that faster is not necessarily better, lies
the larger fact that there is no data whatsoever to show that a state
cleanup of the same quality as a federal Superfund cleanup ever gets
completed faster.
Under the agreement the Tribe may indeed obtain significant funds
from Rayonier to support the Tribe's participation, perhaps several
hundred thousand dollars. But this is a small price for Rayonier to
pay, considering that a more comprehensive cleanup under Superfund
would surely cost the company many millions of dollars more than a
state cleanup.
The concurrence issue
A major legal issue can and surely would be raised eventually
concerning the state granting the Tribe the right to provide
"concurrence at all major decision points in the cleanup process." In
fact, however, the power of concurrence may not be what it first
seems to be. The agreement actually says in section 5h that "Ecology
will consult the Tribe and seek the Tribe's concurrence..." A
stronger statement, however, is in section 5i: "Ecology will not move
forward with a proposed cleanup decision without the Tribe's
concurrence." Has the state of Washington really given up its
sovereign power and authority to act under state laws and regulations
without the Tribe's concurrence? Examination of the Model Toxics
Control Act reveals no basis for the state giving up its power and
authority by making all of its decisions contingent on concurrence by
the Tribe. WAC 173-340-130(9) only refers to Ecology keeping tribes
"informed" and "involved" within the context of "coordination."
Nothing in the act refers to granting any governmental entity,
including tribes, the right of concurrence without which Ecology
could not act. While consulting with the Tribe and seeking
concurrence might be consistent with the act, preventing the ability
of Ecology to move forward because of the absence of Tribe
concurrence has no basis in state law. If this is the case, then any
court action, most probably by Rayonier, would surely provide relief
and allow the state to move forward with cleanup decisions and
actions in the public interest without Tribe concurrence. If the need
for Tribe concurrence is not enforceable, then the whole agreement
between the Tribe and the state is nothing but a ploy to co-opt the
Tribe and facilitate giving Rayonier what it wants.
No effective dispute resolution provision
The part of the agreement dealing with potential disputes provides no
comfort whatsoever. The one main sentence on disputes does not really
provide a dispute resolution mechanism or process but only states:
"In the event that a dispute arises under this Agreement, including
the Tribe's non concurrence with a decision by Ecology, it shall be
determined by a Dispute Board in the following manner:
Level 1 Dispute: Ecology and Tribe Project Managers Level 2 Dispute:
Governor or designated representative and Tribal Chair or designated
representative
Level 3 Dispute: The Tribe may request EPA to resume authority of
cleanup of the site according to the Superfund process or take other
appropriate actions under CERCLA or other applicable law."
The very language referring to a dispute being "determined" seems
meaningless. In both Levels 1 and 2 each party has one vote and a
fundamental disagreement would not be easily resolved. The Level 3 is
essentially meaningless, because the Tribe either believes or has
been led to believe that EPA would easily jump into a contentious
disagreement under its Superfund authorities. But there is no basis
for this belief in law, regulation, policy, or precedent. Even if EPA
wanted to intervene, any EPA action would be legally and politically
difficult and require considerable time to collect and analyze
information and then reach some decision as to which party was right.
That such disputes would be happening during a formal state cleanup
process would raise serious issues that Rayonier, paying for and
implementing site studies and cleanup actions, would surely raise,
including delays that would increase costs and pose safety or other
hazardous conditions. In other words, the dispute management part of
the agreement has no credibility or real value. Endless litigation is
a distinct prospect, but this would not stop a cleanup that the Tribe
found objectionable. Trying to fix a bad cleanup is certainly far
less desirable than getting the cleanup right the first time. Under
federal control Rayonier would find it much more difficult to limit
the scope and quality of the cleanup.
The magnitude of the Rayonier cleanup
Under section 5f, the agreement specifies that the site boundaries
"must include the area of influence of chemical contamination caused
by activities at the Rayonier Mill facility." The main technical
problem, however, with this is that Rayonier is well prepared to
argue that it cannot be proven that the Rayonier mill site was either
the sole or dominant cause of all of the harbor sediment and
residential soil contamination that has already been identified in
EPA's Expanded Site Inspection and much more that might be found in a
truly thorough Remedial Investigation. Rayonier's main objective is
to limit the extent of the cleanup to the mill site itself and a very
limited amount of cleanup in immediately adjacent areas. Rayonier's
intent is to greatly limit the extent of sediment cleanup in the
harbor to a relatively small area close to the mill site and to
totally ignore residential soil contamination. It should be noted
that the letter from Administrator Clarke to Governor Locke
explicitly noted that "NPL listing will not only ensure the
investigation and remediation of onsite contamination, but of
contamination that has migrated off site as well."
Role in key site conceptual model
A key part of the agreement is section 5d on cleanup standards and
construction of the site's conceptual model, which is extremely
important in determining cleanup standards. This section uses much
softer language relative to the role of the Tribe, namely: "Ecology
shall consult with the Tribe in constructing a conceptual model
describing the potential pathways for human and environmental
exposure to contaminants." Consulting with, of course, is a far cry
from requiring concurrence by the Tribe. Apparently construction of
the conceptual model is not the same as a "proposed cleanup decision"
even though it is a profoundly important scientific basis for cleanup
standards and decisions. In fact, the extensive set of term
definitions in MTCA does not include "cleanup decision." However, the
proposed changes in MTCA include a detailed definition of conceptual
site model and the current act includes a definition for cleanup
standards.
Cleanup standards are critically important in the MTCA process
because they specify cleanup levels and according to WAC
173-340-700(2) "Cleanup levels also define the area or volume of
soil, water, air or sediment that must be addressed by the cleanup
action." In fact, this is the only part of the act explicitly
addressing the crucial issue of site boundaries and the geographic
extent of cleanup. Section 5f of the agreement provides this:
"Definition of the site boundaries must include the area of influence
of chemical contamination caused by activities at the Rayonier Mill
facility." But if the Tribe does not have to provide concurrence for
the conceptual site model then it cannot control cleanup standards
and levels, nor the actual extent of the cleanup. The subtle
technical problem is that "the area of influence of influence of
chemical contamination caused by the activities at the Rayonier Mill
facility." can be contested by Rayonier. Rayonier has already argued
that the extensive contamination in the harbor and residential areas
was not caused by the Rayonier facility. Taking everything into
consideration it seems clear that the Tribe does not have the ability
under the agreement to ensure the most comprehensive cleanup,
particularly for the totality of contaminated sediments in the harbor
and Strait as well as residential areas, regardless of the evidence
about contamination in these areas.
The sufficient funding issue
A key aspect of the agreement is that Tribe participation is
contingent on receiving "sufficient funding." But surely what is
sufficient funding is open to considerable debate and disagreement.
It appears that the Tribe must negotiate a separate agreement
concerning the funding, which must come from Rayonier. Having once
obtained the support of the Tribe for state control of the Rayonier
cleanup, having EPA formally remove the site from the Superfund
program, and having initiated specific cleanup activities, neither
the state or Rayonier would find it necessary to provide increased
funding because of needs of the Tribe to maintain or expand its
effective participation.
It should also be appreciated that although Rayonier will surely find
it cost-effective to provide some initial significant funding to the
Tribe, an important benefit of a cleanup being performed under
Superfund would be lost. All NPL sites qualify for Technical
Assistance Grants to community groups. Such TAGs provide a critically
and significant source of funding to allow affected citizens to hire
their own independent technical advisors to examine and interpret all
activities by EPA and other parties performing work at the NPL sites.
The $50,000 grants can be renewed repeatedly as long as Superfund
activities continue at a site. The agreement between the Tribe and
the state does not address the needs of ordinary citizens and
non-governmental groups such as the Olympic Environmental Council. It
should be noted that the letter from Administrator Clarke to Governor
Locke explicitly noted that NPL listing "will also ensure that the
concerns of the natural resource trustees, the Lower Elwha Klallam
Tribe and the citizens petitioners are addressed." The agreement
between the Tribe and state provides no assurances that the
petitioners who caused EPA to perform the Expanded Site Inspection
that has compelled a thorough cleanup of the Rayonier mill site,
which the state on its own had never addressed, would have their
concerns effectively addressed under a state controlled cleanup.
Darlene Schanfald
Olympic Environmental Council
3632 O'Brien Road
Port Angeles WA 98362
360-417-0855 (Phone & FAX)