UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 10 

1200 Sixth Avenue, Suite 900 

Seattle, WA 98101-3140 OFFICE OF 

ENVIRONMENTAL 

CLEANUP 

OCT2& 2011 

Nina DeConcini 

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 

Dear Ms. 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 by then-Governor Kulongosk:i in a letter dated September 2I, 20I 0. In his letter of 

April28, 20II, providing comments on the 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 and jobs provided by the company. 

The Board expressed an interest in exploring other possible 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 I 0, 

20li, the DEQ requested that the EPA provide criteria that EPA would evaluate to determine whether to 

defer the final listing ofthe AMCC site on the 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 on Deferral ofNPL Listing Determinations while States Oversee Response Actions (dated May 

3, I995) must be met. A copy ofthis guidance is enclos;;:d for DEQ's reference. Informed by our 

experience where we have deferred other sites, this letter provides additional detail and clarification on a 

few ofthe key elements that will. be considered by the EPA in determining whether a deferral is 

appropriate. 

As stated in the May I995 guidance, the purpose of deferral 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 of funding 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 reliable assurance 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. 
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1. 	 Assurance that a Comprehensive ~nvironmeiltal Response, Compensation, and Liability Act 

equivalent Remedial Investigation a:nd Feasibility will.be conducted at the AMCC site. 

The RIJFS should define the sev!lrlty and areal extent.of coil.1ammation both on the site as well as the 

sediments adjacent to the site. The boundaries ofthe AMCC site will be determined by the extent of 

contamination with consideration ofcontanlin!J.Ptmigration from the uplands to groundwater and to 

open waters. The RIIFS scope ofwork thetefor¢:shotild not be restricted 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 by the .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 extent practicable, or otherwise contain sources; and 

• 	 are reliable over the long term, 

A work plan, sampling and analysis plan, quality asslirance/quality control plan. and health and 

safety plan also will need to be prepared. 

2. 	 Assurances that the 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 of a 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 and is effective, cost-effective and reliable. 

• 	 DEQ will ensure that .groundwater is restored to its highest beneficial use, to the extent 

practicable. 

Although the guidance generally provides for an annual review by the EPA, the agencies may need 

to establish aprotocolfor more frequent connnunic1,1tion and EPA involvement to. address specific 

issues conceruing CERCLA protectiveness. The EPA considers a CERCLAcprotective cleanup to be 

one that meets federal and more stringent state ARARs. 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 particularly P!lrtinent in a situation such as this where we may lack solid 

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assurances regarding the availability offunding for the remedial action and therefore, the distinct 

possibility .that the site would be referred bac~ to the EPA. For these reasons, ifthe EPAdetermines 

that the Rl/FS is insufficient or the cleanup is not CIERCLA-protective, EPA may exercise its 

authority to terminate the deferral agreement and list the site on the NPL. 

When the DEQ believes that the remedy hasbeen completed, the State shall certify to the Region 

and the affected community that the remedy meets the standards of a 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 and potential cleanup of the AMCC site. 

The EPA will need firm assurance.that the necessar;r investigation 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 of contamination · 

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 funded by responsible 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 or more ofthe parties become recalcitrant, fail 

to perform or withdraw from the agreement. The plan should detail the. steps and a schedule for the 

implementation of enforcement actions, the identification ofother available funding sources 

including state programs and a description ofhow funding would be requested from such sources, 

and an explanation ofhow and when the site l,vouldlbe referred back to the EPA for placement on the 

NPL in the event the Rl/FS, proposed plan orrecord. ofdecision cannot be completed under the 

deferral. 

Should a decision be made 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 and maintenance ofthe site. 

Note that the EPAmay pursue recovery under its ovm authorities ofthe costs it has incurred related 

to the site. 

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4. P·reservation of the rights ofthe Federal N atll.ral Resource Trustees 

At NPt sites, under the Superfundl1,1w, the EPA is required to coordin:ate assessments, 

investigations and planning with .the Federal Natural Resource Trustees. If a 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 unclear how. 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 by the Trustees, AMCC must enter into an 

agreement. tolling the applicable statute oflimitations to enable full participation by the Trustees. 

This tolling agreement should be 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 not be impaired. Any final deferral will be contingent upon a 

signed tolling agreement, ifone is requested by the Trustees. 

5. Assurance of support for Tribal involvement 

The EPA has both a federal trust responsibility to Tribes and a government-to-government 

relationship with Tribes. This assures the Tribes that they will be consulted and have their 

viewpoints considered in any EPAactivity thatwould affect them. To preserve tribal rights for 

involvement, the EPA would need assuranc.es from DEQ that they would agree to develop a 

Memoranda ofUnderstanding with any affected tribe that would describe their government-togove=ent relationship 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 of support of co~unity involvement 

We know the DEQ shares our interest in ensuring meaningful co=unity engagement in the site 

cleanup process. To help ensure informed comtnunity involvement at this site, we would expect the 

DEQ to develop a co=unity involvement plan. Also, funding will need to be provided for 

co=unity technical. assistance (similar to·EPA's Technical Assistance 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 later than January 31,2012, a written deferral agreement signed by the DEQ and the 

EPA incorporating these assurances, the other elements ofthe deferral guidance and a schedule for 

completion ofthe remedial investigation/feasibility study. 

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Ifyou 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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