UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION 10
____________________________________
)
IN THE MATTER OF: ) U.S. EPA Region 10
) CERCLA Docket No. 10-2001-0055
Lower Duwamish Waterway )
Seattle, WA )
)
Port of Seattle, City of Seattle, )
King County, The Boeing Company )
)
Respondents )
)
Proceeding Under Sections 104, 122(a) ) SIXTH AMENDMENT
and 122(d)(3) of the Comprehensive )
Environmental Response, Compensation, )
and Liability Act, 42 U.S.C. §§ 9604, )
9622(a) and 122(d)(3) )
____________________________________)
Introduction
In December 2000, the City of Seattle, King County, the Port of Seattle, and the Boeing
Company (“Respondents”) entered into an Administrative Order on Consent for Remedial
Investigation/Feasibility Study, U.S. EPA, Region 10 Docket No. CERCLA 10-2001-0055,
Ecology Docket No 00TCPNR-1895 (12/20/2000) (the “RI/FS AOC”) with the United States
Environmental Protection Agency (“EPA”) and the Washington State Department of Ecology
(“Ecology”). Respondents performed a remedial investigation and feasibility study for the
Lower Duwamish Waterway Superfund Site (“Site” or “LDW”) under the oversight of EPA and
Ecology pursuant to the RI/FS AOC. The RI/FS AOC has been amended five times to provide
for the performance of additional studies related to the Site. The First Amendment, effective
March 19, 2013, provided for the performance of the Fisher Study for the LDW. The Second
Amendment, effective July 17, 2014, provided for the performance of the Enhanced Natural
Recovery (ENR)/Activated Carbon (AC) pilot study. The Third Amendment, effective April 27,
2016, provided for the performance of pre-remedial design studies. The Fourth Amendment,
effective July 9, 2018, provides for remedial design (RD) of the LDW Upper Reach. The Fifth
Amendment, effective July 8, 2021, provides for RD of the LDW Middle Reach. The
Respondents continue to perform these studies pursuant to the terms of the amended RI/FS AOC.
Item No. 8i – attach 1
Meeting Date: December 12, 2023
2
The EPA issued a Record of Decision for the Site on November 21, 2014 (the “Lower
Duwamish Waterway ROD”). The Lower Duwamish Waterway ROD selected remedial actions
for the in-waterway portion of the Site.
Source control is an integral part of the strategy for addressing contamination throughout the
Site. An objective of the source control endeavor is to find and sufficiently control sources
upland of the waterway before commencing in-waterway remediation. Ecology is the lead
agency for implementing source control actions and uses its existing regulatory authorities to
control sources. For purposes of assessing adequacy of source control in the immediate source
area to the LDW, Ecology has divided the LDW into three reaches: upper, middle, and lower.
Consistent with Sections 4.2 and 13.2.7 of the LDW ROD, EPA intends to commence remedial
action for the LDW Site or a segment thereof after a source control determination for the LDW
Site or segment thereof is made.
The objective of this Sixth Amendment is to terminate the amended RI/FS AOC.
Sixth Amendment
EPA, Ecology, and Respondents agree to amend and terminate the amended RI/FS AOC as
follows:
1. With the exception of XVII (Record Preservation), Section XVIII (Dispute
Resolution), Section XXII (Payment of EPA Oversight Costs) and Section XXIV
(Other Claims) of the amended RI/FS AOC, the amended RI/FS AOC shall, despite
the terms of Section XXVII (Termination and Satisfaction) of the amended RI/FS
AOC, terminate on the date a consent decree that provides for implementation of
remaining remedial design and remedial action for the LDW Site (RD/RA Consent
Decree) is entered by the United States District Court for the Western District of
Washington (hereafter the Effective Date). Under Section XXI.4 of the amended
RI/FS AOC, the requirements of the amended RI/FS AOC will have been satisfied
with respect to work performed up to the Effective Date and all remaining amended
RI/FS AOC obligations to perform work will be subsumed into the RD/RA Consent
Decree.
2. Section XVIII (Dispute Resolution), Section XXII (Payment of EPA Oversight
Costs), and Section XXIV (Other Claims) of the amended RI/FS AOC shall terminate
on the date Respondents pay EPA for all oversight costs that are incurred by EPA
pursuant to the amended RI/FS AOC from October 1, 2022 up to the Effective Date.
Payment of the oversight costs EPA incurs during this period shall be made pursuant
to the terms of Section XXII (Payment of EPA Oversight Costs).
3. Section XXI (Reservation of Rights and Reimbursement of Costs) and Section XXIV
(Other Claims) shall remain in effect after the Effective Date only for Respondents
that do not sign the RD/RA Consent Decree.
3
4.
The amounts paid by Respondents to the EPA Hazardous Superfund pursuant to this
Sixth Amendment and the requirements of Section XXII (Payment of EPA
Oversight Costs) of the amended
RI/FS
AOC shall be deposited by EPA into the
Lower Duwamish Waterway Superfund Site Special Account pursuant to Section
XXI (Reservations of Rights and Reimbursement of Costs) of the amended
RI/FS
AOC to be retained and used by EPA to conduct or finance response actions at or in
connection with the Site. In addition, EPA has several other site-specific accounts
related to the Site within the EPA Hazardous Superfund. Funds held in such site-
specific accounts may be transferred to the Lower Duwamish Waterway Superfund
Site Special Account if EPA determines that the funds are no longer needed to
finance or otherwise support the implementation of response actions for which
such site-specific account was created. After completion of response actions at or
in connection with the Site, any funds remaining in the Lower Duwamish
Waterway Site Specific Account may be transferred by EPA to the EPA
Hazardous Substance Superfund.
It is so ORDERED AND AGREED this ____________ day of ______________, 2023.
By:_______________________________________ DATE:__________
Kira Lynch
Chief, Remedial Cleanup Branch Unit Manager,
Superfund and Emergency Management Division
Region 10
United States Environmental Protection Agency
By: _______________________________________ DATE:__________
Kim Wooten, Manager
Northwest Regional Office.
Program Manager
Toxics Cleanup Program
Washington Department of Ecology
4
Agreed this ___ day of ____________, 2023
For Respondent Port of Seattle
By: ________________________
Name:______________________
Title:_______________________
5
Agreed this ___ day of ____________, 2023
For Respondent City of Seattle
By: ________________________
Name:______________________
Title:_______________________
6
Agreed this ___ day of ____________, 2023
For Respondent King County
By: ________________________
Name:______________________
Title:_______________________
7
Agreed this ___ day of ____________, 2023
For Respondent The Boeing Company
By: ________________________
Name:______________________
Title:_______________________