UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10 1200 Sixth Avenue, Suite 900 Seattle, WA 98101-3140 OFFICE OF ENVIRONMENTAL CLEANUP 

## OCT2& 2011 NinaDeConcini Northwest Region Administrator Oregon Department ofEnvironmental Quality 2020 SW Fourth Avenue, Suite 400 Portland,Oregon 9720I-4987 Re: Deferral Criteria for final NPL listing ofthe Astoria Marine Construction Company DearMs. DeConcini: In March ofthis year, the U.S. Environmental Protection Agency Region I 0 proposed the Astoria Marine Construction Company site for inclusion on the Superfund National Priorities List. This action was supported bythen-Governor Kulongosk:i in a letter dated September2I, 20I0. Inhis letter of April28, 20II, providing comments onthe proposed listing, the Chair ofthe Clatsop County Board of Commissioners requested that the EPA delay making a final decision on listing the site to the NPL. While the Board ofCommissioners supported cleanup ofthe site, the Board also expressed concern regarding the potential impacts to AMCC's viability 

### arul the services andjobs provided bythe company. The Board expressed an interest in exploring otherpossible options for securing the cleanup ofthe site. In response, the EPA agreed to delay making a final listing decision until March 20I2. In a meeting between the EPA and the Oregon Department ofEnvironmental Quality on August I0, 20li, the DEQ requested that the EPAprovide criteria that EPAwould evaluate to determine whether to deferthe final listing ofthe AMCC site onthe NPL while the DEQ oversees investigation and cleanup. In determining whether to defer this site to the DEQ, certain conditions, as outlined in the EPA's guidance onDeferral of NPL ListingDeterminations while States Oversee ResponseActions (dated May 3, I995) must be met. A copy ofthis guidance is enclos;;:d for DEQ's reference. Informed by our experience where wehave deferred other sites, this letterprovides additional detail and clarificationon a few ofthe key elements that will.be considered bythe EPA in determining whether a deferral is appropriate. As stated in the May I995 guidance, the purpose ofdeferral is to address sites more quickly than the ·EPA would otherwise address them. In order to achieve this purpose, the DEQ will need to ensure a reliable source offunding to accomplish the remedial in'Vestigation and feasibility study. The EPA understands that AMCC is currently seeking coverage determinations from its insurance carriers. AMCC will need to obtain a duty to defend determination, or an equivalent and reliableassurance of funding, to provide certainty that funding will be availalDle to complete the Rl/FS. Given the importance ofa reliable funding source, AMCC should obtain a dut,y to defend detennination or equivalent funding mechanism byDecember I, 20Il.-**~--------------------------------~------------------------------·**



### 1. Assurance that a Comprehensive**~nvironmeiltal** 

### Response, Compensation, and LiabilityAct equivalent Remedial Investigation a:nd Feasibility will.be conducted atthe AMCCsite. The RIJFS should define the sev!lrlty and areal extent.ofcoil.1ammationboth on the site as well as the sediments adjacent to the site. The boundaries ofthe AMCC site will be determined bythe extent of contamination with consideration ofcontanlin!J.Ptmigration from the uplands to groundwater and to open waters. The RIIFS scope ofwork thetefor¢:shotild not berestricted to the area that was investigated under EPA's site investigation. A CERCLA-equivalent RI/FS also will determine applicable or relevant and appropriate requirements; assess associated human health risks, including risks associated with subsistence consumption ofseafood and ecological risks, especially in sensitive habitats and critical habitats of species protected bythe .Endangered Species Act; and evaluate remedial alternatives. Evaluation of remedial alternatives includes consideration ofvarious remedial technologies that when implemented: • are protective ofhuman.health and the enviromnent; • meet ARARs to the maximum extent practicable under DEQ's state authorities; • treat/remove sources to the extentpracticable, or otherwise contain sources; and • are reliable over the long term, A workplan, sampling and analysis plan, quality asslirance/quality control plan.and health and safety plan also will need to be prepared. 2. Assurances thatthe remedy selected for implementation at the AMCC site will be a CERCLAprotective cleanup and will be substantially similar to 

## aCERCLA response. The DEQ 

### will need to demonstrate selection ofa CERCLA-protective cleanup ofthe site that is substantially similar to a CERCLA response. To clarify the standard "substantially similar to a CERCLA response," the EPA expects that:.

• DEQ will select a response action will be protective ofhuman health and the environment, as generally defined by a 1 

## o-4 to a 10"6 

### risk range for carcinogens, a hazard index of 1 or less for non-carcinogens and an ecological risk above relevant screening level ecological risk values.

• DEQwill ensure that the remedy select!')d at the site will comply with all Federal ARARs and more stringent State ARAR requirements to the.maximum extent practicable under DEQ's state authorities, controls or eliminates sources andis effective, cost-effective and reliable.

• DEQ will ensure that .groundwater is restored to its highestbeneficial use, to the extent practicable. Although the guidance generallyprovides for an annual review bythe EPA, the agencies may need to establish aprotocolfor more frequent connnunic1,1tion and EPA involvement to. address specific issues conceruing CERCLA protectiveness. The EPAconsiders a CERCLAcprotective cleanup to be one thatmeets federal and more stringent stateARARs. However, the EPA recoguizes that ifthe site is deferred, it would be addressed under state authorities, which may give rise to questions concerning CERCLA protectiveness ail.d differences .between. state and federal authorities. Such · considerations would be particularlyP!lrtinentin a situation such as 

### this where we may lacksolid 2assurances regarding the availability offunding forthe remedial action and therefore, the distinct possibility.that thesite wouldbereferred**bac~** to the EPA. Forthese reasons, ifthe EPA determines that the Rl/FS is insufficient orthe cleanup is not CIERCLA-protective, EPAmay exercise its authorityto terminate the deferral agreementand list the site onthe NPL. When the DEQ believes that the remedy hasbeen completed, the State shall certify to the Region and the affected communitythat the remedymeets the standards ofa CERCLA-protective cleanup. As part ofthis certification, the State shall submit to the Region remedial action completion documentation similar to EPA's "Remedial Action Report" (OSWER Directive 9355.0-39FS). 3

.. Assurance that an appropriate enforcement mechanism will be in place during the investigation andpotential cleanup ofthe AMCC site. The EPA willneed firm assurance.that the necessar;rinvestigation and feasibility study will be completed without requiring federal Superfund program enforcement or funding. From discussions between the DEQ and the EPA to date, it is our understanding that DEQ is not committing from its own resources the funding to conduct the investigation and any necessary cleanup at the site. Ifthis. continues to be the case, a deferral agreement will require a sigued, enforceable agreement between the DEQ and the responsible party(s) to conduct the Rl/FS. Specifically, EPA would expect to be assured that the enforceable agreement(s) provides for the following:

a. All necessary investigation work to characterize the full nature and extent ofcontamination · will be completed in a timely manner; b. Work not funded by responsible parties will.also be completed in a timely manner (or concurrent with work fundedbyresponsible parties).

c. The RI and FS work will result in timely preparation ofproposed plans(s) and record(s) of decision. d. Final cleanup decision-making will rest with the DEQ. Beyond the enforceable agreement, the DEQ will need to present a plan that clearly demonstrates how DEQ intends to complete the Rl/FS should one ormore oftheparties become recalcitrant, fail to perform or withdrawfrom the agreement. The plan should detail the. steps and a schedule for the implementation ofenforcement actions, the identification ofother available funding sources including state programs and a description ofhow funding wouldberequested from such sources, and an explanation ofhow and when the site l,vouldlbe referred back to the EPA for placement on the NPLinthe event the Rl/FS, proposed plan orrecord. ofdecision cannot be completed under the deferral. Should a decisionbemade that a remedial and/or removal action is necessary; the EPA will need firm assurance that the DEQ and the responsible panty have a sigued, enforceable agreement to conduct the cleanup and future operation andmaintenance ofthe site. Note that the EPAmaypursuerecovery under its ovm authorities ofthe costs ithas incurred related to the site.
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### 4. P·reservation ofthe rights oftheFederalNatll.ral Resource Trustees At NPt sites, under the Superfundl1,1w, the EPA is required to coordin:ate assessments, investigations and planning with.the Federal NaturalResource Trustees. Ifa site is listed on the NPL the statute oflimitations for the Trustees to file Natural Resource Damage Assessment claims 

### '

. 

### runs for three years from the compietion ofreniedial actions. However, under deferral the statute of

· limitations would be much sooner and it is unclearhow.the deferral agreement would affect the rights ofthe Trustees to recover natural resource damages. The EPA's interest is to protect the rights ofits federal partners, and we have significant concerns that the deferral action may limit the

. Trustees' ability to be fully engaged in the cleanup investigations, planning and recovery natural

·resource damages, ifappropriate. Therefore; ifrequested bythe Trustees, AMCC must enter into an

agreement.tolling the applicable statute oflimitations to enable full 

### participationbythe Trustees. This tolling agreement shouldbe executed concurrent with a final deferral action. The EPA expects that the DEQ will facilitate the signing ofthis agreement and assure that the Trustee's role throughout the cleanup process will notbe impaired. Any final deferral willbe contingent upon a signed tolling agreement, ifone is requested bythe Trustees. 5. Assurance ofsupport for Tribalinvolvement The EPA hasboth a federal trust responsibilityto Tribes and a government-to-government relationship with Tribes. This assures the Tribes thattheywill be consulted and have their viewpoints considered in anyEPAactivity thatwould affect them. Topreserve tribal rights for involvement, the EPA would need assuranc.es from DEQthat theywouldagree to develop a Memoranda ofUnderstanding with any affected tribe that would describe their government-togove=entrelationship in the planning, investigation and cleanup process. Such an agreement may also require funding to the affected tribes, where appropriate, to ensure their full 

### participation in the cleanup process. 6. Assurance ofsupport of**co~unity** 

### involvement We know the DEQ shares our interest in ensuring meaningful co=unityengagement in the site cleanup process. To help ensure informed comtnunity involvement at this site, we would expect the DEQ to develop a co=unityinvolvementplan. Also, funding will needto be provided for co=unitytechnical. assistance (similar to·EPA's TechnicalAssistance Grants). Ifthe site is deferred, DEQ should have funding strategies in place to address this need.

. I hope that this letter clarifies the EPA's needs in evaluating the potential deferral ofNPL listing to DEQ response authorities. The EPA is committed to provide additional information about our deferral process, as needed. As 

### we discussed, the EP:A would need written assurance ofthe above elements no later than December 31,2011, to defer a final listing ofAMCC to theNPL. We would then expect to have in place no laterthan January 31,2012, a written deferral agreement signed bythe DEQ and the EPA incorporating these assurances, the other elements ofthe deferral guidance and a schedule for completion ofthe remedial investigation/feasibilitystudy.

4Ifyou have any questions or comments, please feel free to contact me at 206-553-1855. Sincerely,

Daniel D. Opalski Director

Enclosure

cc: Senator Betsy Johnson Senator JeffMerkley Senator Ron Wyden Representative Deborah Boone Chuck Harman, DEQ, NW Region Keith Johnson, DEQ, 

### NW Region Duane Cole, Clatsop County Board ofCommissioners Don Fastabend, AMCC Tim Fastabend, AMCC

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