Template revised January 10, 2019.
COMMISSION
AGENDA MEMORANDUM
Item No.
8i
ACTION ITEM
Date of Meeting
December 12, 2023
DATE : November 15, 2023
TO: Stephen P. Metruck, Executive Director
FROM: Sandra Kilroy, Sr. Director, Environment and Sustainability
Sarah Ogier, Director, Maritime Environment & Sustainability
Kathy Bahnick, Sr. Manager, Environmental Programs
SUBJECT: Lower Duwamish Administrative Order on Consent Amendment
Amount of this request:
$0
Total estimated project cost:
$0
ACTION REQUESTED
Request Commission authorization for the Executive Director or General Counsel to execute a
Sixth Amendment to the Administrative Order on Consent (AOC) with the U.S. Environmental
Protection Agency, King County (County), City of Seattle (City), and The Boeing Company (Boeing)
for the Lower Duwamish Waterway (LDW) Superfund Site.
EXECUTIVE SUMMARY
Since 2001, the Port, City, County, and Boeing (referred to as the Lower Duwamish Waterway
Group, or LDWG) have been working under an agreement with the U.S. Environmental Protection
Agency (EPA) to perform cleanup investigation activities for the LDW. A consent decree for the
next phase of cleanup implementation is expected in 2024. Once the consent decree is in place,
the AOC will not be needed. This amendment clarifies that the obligations of the amended
Remedial Investigation/Feasibility Study AOC will be incorporated into the consent decree and
the AOC will terminate on the effective date of the consent decree.
JUSTIFICATION
The Duwamish is Seattle’s only river. It provides important community assets, recreational
fishing, and tribal cultural heritage resources, and is a critical estuarine environment for salmon
and wildlife. The Duwamish has also played a crucial role in developing our region’s economy for
over a hundred years: today local maritime and industrial businesses employ over 100,000
people and support more than 25 percent of the manufacturing in King County.
COMMISSION AGENDA – Action Item No. 8i Page 2 of 4
Meeting Date: December 12, 2023
Template revised June 27, 2019 (Diversity in Contracting).
The Environmental Protection Agency (EPA) listed the Lower Duwamish Waterway as a
Superfund site in 2001 as a result of contamination stemming from nearly a century of industrial
activities (including ship and plane manufacturing) and toxic discharges to the river. Primary
contaminants of concern are polychlorinated biphenyls (PCBs), carcinogenic polycyclic aromatic
hydrocarbons (cPAHs), arsenic, and dioxin/furans. In 2014, the EPA developed a detailed and
comprehensive cleanup plan, called a Record of Decision (ROD). Early Action area cleanups which
included the Ports Terminal 117, reduced the surface concentrations of PCBs in the river by
50%. The work to be performed for the rest of the river is expected to reduce contamination
levels by at least 90 percent.
In 2001, the Port initiated a groundbreaking partnership with King County, the City of Seattle,
and The Boeing Company to investigate and address contamination at the Site in coordination
with EPA. For over twenty years, the Port has provided extensive staffing and financial resources
toward the cleanup actions in the interest of ensuring that this work advanced. While none of
the Lower Duwamish Waterway’s most contaminated areas is attributable to the Port or its
tenants, the Port has made significant investments to improve conditions in the Duwamish River
and the surrounding community.
Under the Superfund program alone, the Port of Seattle has spent more than $80 million to date
on Lower Duwamish Superfund projects, including soil and in-water sediments cleanup at
Duwamish River People’s Park (formerly known as Terminal 117) and subsequent habitat
restoration; Lower Duwamish Waterway investigation and design; and cleanup and source
control activities at adjacent upland facilities including Terminal 108, Terminal 115, and South
Park Marina.
EPA is preparing a consent decree for the completion of the remedial design and for
implementation of the LDW cleanup, which is expected to be effective in 2024. Remedial design
work is currently being performed under the existing AOC. Because the obligations of the AOC
will be incorporated into the consent decree, this amendment clarifies that the AOC will
terminate on the effective date of the consent decree. This amendment allows for work on the
Site to continue uninterrupted when EPA’s administrative oversight process shifts from the AOC
to the consent decree. The amendment has been agreed to in principle by EPA and the LDWG
parties and, as with prior amendments, is expected to be signed by all five entities. By entering
into a consent decree for the site, EPA is moving this site closer to cleanup.
Diversity in Contracting
N/A
DETAILS
Scope of Work
No new scope of work is included in this amendment. The Port’s obligations under the existing
AOC will continue until the effective date of the consent decree. Once the consent decree is
COMMISSION AGENDA – Action Item No. 8i Page 3 of 4
Meeting Date: December 12, 2023
Template revised June 27, 2019 (Diversity in Contracting).
effective, the AOC will terminate. Any remaining scope of work that was under the existing AOC
will continue under the consent decree.
Schedule
The exact date of the consent decree’s publication is unknown, but it is expected in 2024.
Adoption of this amendment will allow for a seamless transition between administrative
mechanisms.
ALTERNATIVES AND IMPLICATIONS CONSIDERED
Alternative 1 - Do not authorize entering into AOC Amendment.
Cost Implications: $0.
Pros:
1. None
Cons:
1. Could delay the consent decree, which would delay implementation of the
cleanup.
2. Could result in confusion about which agreement (AOC or consent decree)
governs which phase of work.
This is not the recommended alternative.
Alternative 2 – Authorize entering into AOC Amendment.
Cost Implications: $0.
Pros:
1. Allows the consent decree to move forward and to begin implementation of the
cleanup.
Cons:
1. None.
This is the recommended alternative.
ATTACHMENTS TO THIS REQUEST
(1) Sixth Amendment to the Administrative Order on Consent
PREVIOUS COMMISSION ACTIONS OR BRIEFINGS
• June 8, 2021 – The Commission authorized the Executive Director to: (1) execute a Fifth
Amendment to the Administrative Order on Consent with the U.S. Environmental Protection
Agency for the Lower Duwamish Waterway (LDW) Superfund Site; and (2) execute a Seventh
Amendment to the Lower Duwamish Waterway Group Memorandum of Agreement to contract
for and perform cleanup design of the middle third of the LDW.
COMMISSION AGENDA – Action Item No. 8i Page 4 of 4
Meeting Date: December 12, 2023
Template revised June 27, 2019 (Diversity in Contracting).
•
June 12, 2018 - The Commission authorized the Executive Director to execute the Fourth
Amendment of the Lower Duwamish Waterway Administrative Order on Consent, Sixth
Amendment of the Lower Duwamish Waterway Group Memorandum of Agreement.
• April 12, 2016 - The Commission authorized the Executive Director to execute the Third
Amendment of the Lower Duwamish Waterway Administrative Order on Consent, Fourth
Amendment of the Lower Duwamish Waterway Group Memorandum of Agreement.
• July 1, 2014 – The Commission authorized the Executive Director to execute the Second
Amendment of the Lower Duwamish Waterway Administrative Order on Consent, Second
Amendment of the Lower Duwamish Waterway Group Memorandum of Agreement.
• February 26, 2013 – The Commission authorized the Executive Director to execute the
First Amendment to the Lower Duwamish Waterway Group Administrative Order on Consent.
• January 22, 2013 – The Commission authorized the Executive Director to execute the First
Amendment to the Lower Duwamish Waterway Group Memorandum of Agreement.
• October 12, 2010 – Briefing on the Lower Duwamish Waterway Feasibility Study.
• May 5, 2009 – Briefing on the Lower Duwamish Waterway Feasibility Study.
• November 4, 2008 – Briefing on the Lower Duwamish Waterway Remedial Investigation
and Feasibility Study.
• November 6, 2007 – Briefing on Lower Duwamish Sediment Superfund Site.
