Agenda Item: 8h_attach2
Meeting Date: September 9, 2025

MEMORANDUM OF AGREEMENT
BETWEEN THE PORT OF SEATTLE, THE CITY OF SEATTLE, AND KING COUNTY
REGARDING THE EAST WATERWAY OPERABLE UNIT
OF THE HARBOR ISLAND SUPERFUND SITE
THIS MEMORANDUM OF AGREEMENT ("MOA") is entered into by the Port of Seattle
("Port"), The City of Seattle ("City") and King County ("County"), collectively referred to as
the "East Waterway Group" ("EWG") and individually as "member" or "members." The
effective date of this MOA is the latter date by which all three members have signed.
RECITALS
WHEREAS, the EWG members have been cooperating to fund and perform a
Supplemental Remedial Investigation and Feasibility Study ("SRI/FS") of the East Waterway
Operable Unit of the Harbor Island Superfund Site (hereafter the "Site") since 2006,
pursuant to the Administrative Settlement Agreement and Order on Consent for
Supplemental Remedial Investigation/Feasibility Study, CERCLA Docket No. 10-2007-0030
("2006 Order"); and
WHEREAS, the SRI/FS has been approved by the United States Environmental
Protection Agency, though some supplemental FS work continues under the 2006 Order,
and EWG members intend to continue to coordinate efforts to implement and fund the
remaining work required by that order; and
WHEREAS, EPA issued a Proposed Plan followed by an Interim Record of Decision
("IROD") in which EPA selected an interim remedy for the Site; and
WHEREAS, the EWG members expect that EPA will propose an Administrative
Settlement Agreement and Order on Consent ("ASAOC") to design the interim remedy,
followed by a consent decree ("Consent Decree") to implement the remedy; and
WHEREAS, the EWG members intend to each sign, in their individual capacities, the
ASAOC; and
WHEREAS, the EWG members intend to continue to coordinate their efforts, as
separate signatories jointly responsible under CERCLA for meeting the requirements of any
such ASAOC by cooperating to implement and fund (subject to individual appropriations,
potential subsequent re-allocation of costs, and joint efforts to secure contributions from
other Potentially Responsible Parties ("PRPs") the design work required by such ASAOC;
NOW THEREFORE, the EWG members agree as follows:

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TERMS
1.

Applicability of this Agreement.
This Agreement shall be in full force and effect upon its execution by all EWG
members. After this Agreement takes effect, it shall govern their actions and the
costs they incur to complete work under the 2006 ASAOC and to implement the
new ASAOC regarding remedial design. This Agreement does not supersede or alter
in any way the provisions of the 2006 MOA among the EWG members, which
continues in effect for actions taken and costs incurred prior to this Agreement
taking effect.

2.

3.

Roles and Decision-making.
2.1

The roles and decision-making provisions outlined herein are established to
facilitate coordination of EWG member efforts to fulfill their respective
obligations under the 2006 Order and the anticipated ASAOC. No delegation
of individual EWG member decision-making or legal authority to any other
EWG member(s) is intended or implied.

2.2

The Port will continue managing the existing contract to implement tasks
required under the 2006 Order for the SRI/FS. Implementation of that
contract and sharing of the associated costs are now subject to this
Agreement.

Each of the EWG members shall appoint one representative to each of three
groups: 1) a Technical Group; 2) a Manager Group; and 3) a Director Group. Each
Group shall make decisions by consensus, meaning that the EWG members'
representatives must, for purposes of their agreed coordination under this MOA,
reach unanimous agreement. An EWG member may have more of its personnel
attend meetings and participate in discussions, but each EWG member may only
have its designated representative or that person's substitute express that EWG
member's position when an EWG decision is being made. If the Technical Group
cannot reach consensus, it shall elevate the disputed issue to the Manager Group
or Director Group, as appropriate. If the Manager Group cannot reach consensus, it
shall elevate the disputed issue to the Director Group.
3.1

Each Group shall rotate administrative responsibilities (setting meetings,
developing agendas, and the like) among its EWG member representatives or
make other arrangements as it deems appropriate to perform administrative
tasks.

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4.

3.2

Each Group shall confer and meet as often as it deems appropriate. An EWG
member representative may call for a meeting of their respective Group with
reasonable notice and the other Group representatives shall cooperate. As a
guideline, the Technical Group should meet at least once per month; the
Manager Group should meet at least once every two months; and the
Director Group should meet at least once every six months.

3.3

Technical Group: The responsibilities of the Technical Group shall include,
but are not limited to: reviewing, evaluating and revising deliverables
required by the Scopes of Work ("SOWs") attached to the 2006 Order and
the ASAOC before such deliverables are provided to EPA; responding to EPA
drafts of orders, SOWs, or other documents; responding to EPA requests and
directives under the 2006 Order and ASAOC; identifying the consultants and
contractors needed to implement the SOWs and participating cooperatively
in selecting them; directing consultants and contractors implementing the
SOWs under the 2006 Order and ASAOC, including reviewing and
commenting on deliverables; communicating with the Site EPA remedial
project manager, their support staff, and other regulatory agencies as
appropriate, keeping the Manager Group and Director Group informed of the
status of the implementation of the SOWs; carrying out tasks assigned by the
Manager Group or Director Group; and overseeing the development of cost
estimates.

3.4

Manager Group: The responsibilities of the Manager Group shall include, but
are not limited to: evaluating and guiding approaches to strategic and policy
issues; guiding communication with the public and with stakeholder groups;
overseeing the work of the Technical Group; communicating with EPA and
other regulatory agencies as appropriate; and approving the retention of
consultants and contractors to implement the SOWs.

3.5

Director Group: The responsibilities of the Director Group shall include but
are not limited to: making decisions on disputed issues; overseeing the
Manager Group; guiding strategic and policy choices.

3.6

If the Directors are unable to resolve a disputed issue, the EWG members
may choose to employ a third-party facilitator or mediator, or they may
choose another way to resolve the dispute, such as escalating it to a more
senior level (e.g., Directors' supervisors) of their respective agencies.

3.7

The EWG members shall have equal access to all consultant and contractor
work product, including all drafts and final versions, including but not limited
to, reports, sampling plans, analytical data, and cost estimates.

Contracting Responsibility. With EWG member agreement as to the timing for
doing so, the Port shall procure and administer the design contract to implement
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the ASAOC SOW. For any other consultants or contractors determined necessary
to retain to implement the 2006 Order or ASAOC SOWs, and/or to perform any other
work deemed necessary by the EWG members, the EWG members shall agree
which of them will procure and administer the contract. The EWG member that
procures and administers a contract shall be the "Contract Administrator."
4.1.1 The EWG members will reach consensus on the technical qualifications and
scope of work for each contract. The Contract Administrator will comply
with its own requirements and all applicable statutes regarding hiring of
consultants and contractors by governmental entities in advertising for and
selecting any consultant or contractor.
4.1.2 Consultant Selection: The Contract Administrator will have two members
(project delivery and technical lead) on the selection committee to select
any consultant. Each other member shall have one representative on the
selection committee. Before candidates for the consultant are interviewed
and scored, each EWG member shall identify any candidate that has done
work for the member related to the East Waterway or Lower Duwamish.
Members shall reach an agreement concerning which consultants have a
conflict of interest based on their work for individual members and what
mitigating measures, if any, may be taken to address the conflict. The
Contract Administrator shall execute a contract with the consultant that is
elected using the agreed upon selection process. The contract shall include
provisions (1) requiring the contractor to indemnify all EWG members and
the United States for losses or liabilities to the maximum extent permitted by
law; (2) requiring that the contractor maintain (at minimum) the types and
limits of insurance specified in the ASAOC; and (3) requiring that any
insurance policies name all EWG members and EPA as additional insureds.
4.1.3 The Contract Administrator shall send invoices to the other EWG members
for their share of Shared Costs, as described below in Sections 4.1.4 and
4.1.5. Invoices from consultants and contractors shall be sent to the other
EWG members when those invoices are received and approved by the
Contract Administrator.
4.1.4 The Contract Administrator shall pay the consultants and contractors when
invoices meet the contract requirements and then send invoices for Shared
Costs, other than Staff Costs, on a monthly basis, or as close to monthly as
is feasible, to the other EWG members, who shall reimburse the Contract
Administrator for their shares of the costs.
4.1.5 The Contract Administrator shall send the other EWG members invoices for
Staff Shared Costs at least quarterly.

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4.1.6 Payment by the other EWG members to the Contract Administrator for
reimbursement of all applicable invoices shall be due no later than forty-five
(45) days from issuance of an invoice from the Contract Administrator,
however, members shall endeavor to pay invoices in no more than 30 days.
4.1.7 In the event a party disputes an invoice or portion of an invoice for Shared
Costs, the disputing party shall pay the invoice in full with written notification
to the Contract Administrator identifying the disputed amount. Disputes
regarding costs or payments of invoices shall be handled in the same
manner as disputes regarding other matters under Section 31 except that if
the EWG members cannot resolve the dispute within thirty (30) days, they
shall select a neutral outside person and authorize that person to resolve it.
The selected neutral person shall be directed to resolve the dispute in no
more than sixty (60) days from receiving it. In the event that the dispute is
resolved in the disputing party's favor, the Contract Administrator will refund
the disputed funds to the disputing party within 30 days of resolution.
5.

6.

Contract Oversight.
5.1

Decisions regarding consultants' work products will be made by consensus
of the members. Such decisions will be communicated to the consultant by
the Contract Administrator's project manager.

5.2

Any consultant performing work in accordance with this MOA will not
communicate with third parties, including EPA or Ecology personnel, without
first notifying the Technical Group and receiving its authorization for the
communication. Such authorization will be made by consensus of the
Members and communicated by the Contract Administrator's project
manager.

5.3

All documents, including but not limited to analytical data, that are
prepared, developed or generated by any consultant doing work in accord
with this MOA shall be provided to all members and shall be subject to
review by all members prior to submission to EPA or any other third party.
Members shall be given at least fifteen business days to review and
comment on drafts of work by the consultant that are going to be provided to
EPA or any other third party, unless EPA' s deadlines require that a shorter
review time be provided. The consultant shall compile all member
comments and distribute them to all members. The Contract Administrator's
project manager will direct the consultant on needed consensus changes to
work products.

Shared Costs.

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7.

6.1

The EWG members shall share the following costs ("Shared Costs") equally
on an interim basis, subject to later agreement or allocation: 1) oversight
costs billed by EPA; 2) costs for consultants and contractors retained by the
Contract Administrator with agreement of all the EWG members to
implement the 2006 Order and ASAOC SOWs; 3) salary, benefits, and
overhead (at rate(s) for overhead agreed to by the EWG members) ("Staff
Costs") for hours worked by a Contract Administrator's staff who are directly
involved in contract development, procurement, oversight and management,
and related expenses (such as publication of an RFP; legal review of
contracts and conflict waiver requests for consultants and contractors
retained to implement the SOWs, technical and legal staff involved in
developing access agreements and tribal fishing and business interruption
agreements, and handling reimbursement billings to other EWG members).
Shared Costs includes all costs incurred or yet to be incurred to implement
the 2006 Order. The EWG members may also agree in writing to share other
costs. Such agreement may be memorialized in e-mail between the
Technical, Manager, or Director groups as appropriate.

6.2

The EWG members shall not share: 1) the Staff Costs of representatives of
the Technical, Manager, or Director groups described in Section 3 above, or
any Staff Costs or any legal/attorney costs other than as described in Section
6.1 above (unless the EWG members all agree to include such costs as
Shared Costs); and 2) costs for work not required by the SOWs (unless the
EWG members all agree to perform such work and consider the costs for
such work to be Shared Costs).

6.3

The agreement to share some costs and not others shall not have any
bearing on the recoverability of costs under CERCLA or MTCA, or preclude or
restrict claims regarding the same. This MOA shall not be used by any
member in any future litigation or other cost allocation proceeding as the
basis for asserting what any member's final share of responsibility should
be.

Financial Assurance. The Port agrees to use its best efforts to fulfill the financial
assurance requirements of Paragraph 87 of the ASAOC on behalf of the EWG using
the financial test criteria. The parties acknowledge that the Port is subject to certain
budget limitations as described in Section 20 below. If the Port is unable to meet
EPA's financial test requirements, or if EPA is unwilling to accept the Port's
"standby funding commitment" letter, due to the restrictions imposed under 49
U.S.C. § 47133, the County agrees that it will instead fulfill the financial assurance
obligations of Paragraph 87 of the ASAOC on behalf of the EWG.

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7.1 In the event that no party is able to meet the financial test criteria to EPA's
satisfaction, the parties agree to share equally the costs of obtaining an
alternative financial assurance mechanism (e.g., bond or letter of credit).
7.2 If EPA issues a notice of implementation of a Work Takeover under
Paragraph 68.b of the ASAOC, the parties will pay equal shares of any amount
demanded by EPA within 30 days of the demand, except for amounts
exceeding the current budget authority of the responsible departments for the
Respondents. For amounts exceeding current budget authority, Respondents
shall immediately initiate the steps necessary to obtain sufficient budget
authority. Payment of the remaining amounts shall be made no later than 30
days after the necessary budget authority has been enacted and in any event
within 120 days of the demand unless an alternative payment schedule is
approved by EPA.
8.

Ex Parte Communications. The EWG members agree to confer with each other
prior to having communications with EPA, the Washington Department of Ecology
("Ecology"), other regulatory agencies, the public, stakeholders, or the news media
about the 2006 Order and/or ASAOC, any other EWG work regarding the Site, or
implementation of the SOWs for the Site. The EWG members shall endeavor to
make such communications in the best interests of their collaboration as EWG
members. If an EWG member has communications regarding the 2006 Order
and/or ASAOC, any EWG work related to the Site, or implementation of the SOWs
with any such entities, the communication shall be promptly disclosed to the other
EWG members. The intent of this provision is to protect all the EWG members and
to maintain the credibility, reliability, and effectiveness of the EWG, and to avoid
creating confusion.

9.

Responsibility for Changes to the Schedule. The members are jointly responsible
for delays to the schedule for any work done under the 2006 Order and ASAOC, as
may be amended by EPA, including delays related to acquisition of property rights
required for completion of work.

10.

Cooperation on Model Toxics Control Act Grants. The members will coordinate
and cooperate concerning the documentation of costs that are eligible for partial
reimbursement through Model Toxics Control Act grants.

11.

Allocation; Reservation of Claims; Bar on litigation; Tolling of the Statute of
Limitations.
11.1

The parties intend to work in good faith to develop by January 31, 2026, the
terms of a final settlement agreement among them that they will recommend
to their respective legislative bodies (as necessary for approval) to govern
their cost-sharing. Until the parties have executed a final settlement
agreement regarding their cost shares, the terms of the 2006 MOA shall
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continue to govern regarding costs incurred prior to the effective date of this
Agreement.

12.

13.

11.2

The EWG members shall not file any claim against any other EWG member
regarding any costs for investigation or remedial action for the East
Waterway for as long as this Agreement is in effect, except that if an EWG
member withdraws from this Agreement, then it may file claims against the
other EWG members and vice versa.

11.3

By entering into this agreement, the EWG members are not reviving any
expired statute of limitations but are tolling any currently applicable statute
of limitations that applies to claims they could bring against each other for
costs under CERCLA or costs under MTCA. The statute of limitations shall
be tolled for the duration of this Agreement; provided, however, that tolling
shall cease with respect to parties withdrawing from this Agreement
pursuant to Section 12 upon their withdrawal.

11.4

The EWG members will cooperate in seeking to include additional PRPs in an
alternative dispute resolution process for the allocation of any and all costs
that are recoverable under CERCLA or MTCA. The EWG members reserve all
claims they may have against PRPs that are not parties to this Agreement.

Withdrawal.
12.1

An EWG member may withdraw from this agreement with thirty (30) days
prior written notice to the other EWG members. An EWG member that
withdraws shall remain obligated to pay its share of costs that have been
incurred prior to its notice of withdrawal or that have not yet been incurred
but that the withdrawing EWG member agreed to or became obligated to
pay, such as by approving retention of a consultant or contractor. The
obligation to pay shall continue for costs for or related to completion of any
SOWs for which the EWG members contracted prior the member's
withdrawal.

12.2

An EWG member that withdraws also shall remain subject to the provisions
in this Agreement regarding confidentiality and privilege as to all confidential
and privileged communications or documents to which they were privy prior
to their withdrawal.

Default.
13.1

An EWG member that fails to pay its share of costs when due, or that
breaches another substantive provision of this Agreement, is in default. If
that EWG member fails to cure the default within thirty (30) days of receiving
written notice of the default from the other EWG members, or within such
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longer time as the other EWG members grant, that EWG member may be
expelled from the EWG by the remaining EWG members and shall have no
further rights under this Agreement. An EWG member that is expelled from
the EWG shall continue to be obligated to pay Shared Costs as described in
Section 6.1 above.
13.2

An EWG member that is expelled from the EWG shall remain subject to the
provisions in this Agreement regarding confidentiality and privilege.

14.

Notices. Any notices required by this Agreement shall be in writing and shall be
provided to the EWG member's designated Technical, Manager, and Attorney
representatives. Receipt of the notice must be promptly acknowledged. EWG
members' designated representatives are identified in Appendix A. An EWG
member may change its designated representative by sending notice by e-mail to
the other EWG members' Technical and Attorney representatives.

15.

Consultants and contractors shall not testify against the EWG members. The
EWG members shall not individually retain consultants or contractors that are
retained to implement the 2006 Order or ASAOC SOWs as testifying experts against
any of the EWG members in litigation or in any proceeding to recover or allocate
costs for the Site, without the written agreement of all the EWG members.

16.

Additional parties. Other parties may be added to this Agreement by unanimous
consent of the EWG members.

17.

Confidentiality and privilege.
17.1

Nothing in this MOA shall be construed to affect the separate and
independent representation of the members by their respective legal
counsel; however, the EWG members recognize the potential of litigation
with other PRPs, with EPA or Ecology, or other entities. They intend that their
communications with each other be subject to the Joint Defense Privilege in
order to retain the Attorney-Client Privilege and Attorney Work Product
protection to the same extent as if they had not communicated with each
other, and the members shall take reasonable steps to protect and preserve
the confidentiality of communications subject to the Joint Defense Privilege.

17.2

If an EWG member receives a discovery request or a request for public
records pursuant to state law for communications or documents shared
with one or more of the EWG members, that party shall immediately notify
the other EWG members of the request. In responding to the request, the
recipient shall assert objections and exceptions that it deems appropriate.
The recipient shall endeavor to provide at least ten business days' notice to
the other EWG members before producing documents in response to the
request. The other EWG members may take what actions they deem
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appropriate, which may include but are not limited to, seeking a restraining
order, moving to quash a subpoena, or intervening in litigation.
18.

No partnership, joint venture, etc. This Agreement does not create a partnership,
joint venture, new governmental entity, nor any independent nongovernmental
entity. The EWG has no staff, no address, no budget and no independent authority.
The EWG members remain subject to the governance of their respective entities.

19.

Litigation with non-EWG members. The EWG members may, individually or
collectively, bring a claim for East Waterway costs against any party that is not an
EWG member. The EWG members shall confer with each other prior to initiating
litigation against other parties and shall endeavor to cooperate to protect all of their
interests.

20.

Budget Authority. The commitments made by EWG members in this Agreement
are subject each to their respective appropriations or budget approvals as well
as restrictions under applicable state and federal law. The EWG members shall
use their best efforts to obtain budget authority that is sufficient to fulfill their
obligations under this Agreement. The EWG members acknowledge that the
Washington Anti-Deficiency Act requires public entities to have budget authority for
financial commitments: No EWG member is committing to expend or contract to
expend any money in excess of amounts appropriated or authorized in their
respective budgeting processes, and this MOA may be unilaterally terminated by
any EWG member for lack of appropriation or budget authority. The costs
associated with such a termination, if any, shall not exceed the appropriation or
authorization for the budget period in which termination occurs. In addition, the
Port is subject to the restrictions under 49 U.S.C. § 47133 regarding the use of
airport revenue to cover its costs under this Agreement because such costs are not
an airport capital or operating expense. Under no circumstances will the Port be
obligated to use airport revenue to fund work under this Agreement.

21.

No third-party beneficiaries. This Agreement is not intended to benefit any third
party and is not enforceable by any third party, including but not limited to any
regulatory agency.

22.

No admission of liability. This Agreement does not constitute, nor can it be used
as evidence of, any admission of law or fact or any waiver of a claim or defense
except as expressly provided in this Agreement.

23.

Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and together they shall constitute a single
instrument.

(Signatures on the following pages)
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IN WITNESS WHEREOF, the parties hereto enter into this MOA. Each person
signing this MOA represents and warrants that he or she has been duly authorized to enter
into this MOA by the district or municipality on whose behalf it is indicated that the person
is signing.
DATED this ______ day of ______________________, 2025.

KING COUNTY
___________________________________________
By:
Kamuron Gurol
Title: Director, King County Wastewater Treatment Division
CITY OF SEATTLE
____________________________________________
By:
Andrew Lee, PE, PMP, PgMP
Title: General Manager/Chief Executive Officer
THE PORT OF SEATTLE
_____________________________________________
By:
Stephen P. Metruck
Title: Executive Director

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Appendix A

EWG Members' Designated Representatives
Tech Group

Manager Group

Director Group

Brick Spangler

Joanna Florer

Sarah Ogier

spangler.b@portseattle.org
206-295-9538

florer.j@portseattle.org
206-612-9540

Ogier.s@portseattle.org
206-476-4820

City

To be added

To be added

To be added

County

Debra Williston

Jeff Stern

Kamuron Gurol

Mail Stop: KSC-NR-6200
201 S. Jackson St.
Seattle, WA 98104

Mail Stop: KSC-NR-6200
201 S. Jackson St.
Seattle, WA 98104

Mail Stop: KSC-NR-6200
201 S. Jackson St.
Seattle, WA 98104

debra.williston@kingcounty.gov
(206) 477-4850

jeff.stern@kingcounty.gov
(206) 477-5479

kgurol@kingcounty.gov
(206) 263-5767

Port

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