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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 1

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

Hon. Robert J. Bryan

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

AT TACOMA

STATE of WASHINGTON, the PUYALLUP

TRIBE OF INDIANS, and the

MUCKLESHOOT INDIAN TRIBE,

Plaintiffs,

v.

the UNITED STATES OF AMERICA,

Defendant.

Civ. No. 06-05225RJB

DECLARATION OF 

ROBERT J. WOLOTIRA, JR.

IN SUPPORT OF 

MOTION TO ENTER CONSENT DECREE

1. I am Robert J. Wolotira, Jr., and I make this Declaration in support of Plaintiffs’

Motion to Enter the Consent Decree in the matter of State of Washington, et al., v.

the United States, Civ. No. C06-5225RJB. By this Declaration I am explaining

the process used to allocate liability to the United States for natural resource

damages relating to the Hylebos Waterway for the purpose of the settlement

proposed in the Consent Decree.

2. I received a BS in Fishery Biology from Michigan State University in 1966, with

emphasis on chemistry, invertebrate biology and limnology/oceanography, and a

MS in Marine Science from the University of Washington in 1984, majoring in

statistics and population modeling.

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 2

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

3. I am currently a retired federal government employee working as an ecologist on

contract with the National Oceanic and Atmospheric Administration (NOAA)

Restoration Center. From February 1994 - February 2007, I was employed by

NOAA as a Damage Assessment Specialist. I worked in what is now the

Assessment and Restoration Division (ARD) of the Office of Response and

Restoration of NOAA’s National Ocean Service. ARD assesses natural resource

damages resulting from hazardous substance releases and oil spills that injure

publicly owned or managed natural resources for which NOAA has been

designated as a trustee on behalf of the public. NOAA typically carries out natural

resource damage assessments in conjunction with federal, state and tribal cotrustees. During the years mentioned, I was NOAA’s chief scientist for the

Commencement Bay natural resource damage assessment.

4. I was responsible for managing the scientific and technical work that formed the

substance of the Commencement Bay natural resource trustees’ (“Trustees”)

proposal for settling natural resource damages claims relating to Commencement

Bay’s Hylebos Waterway. I managed the efforts by contractors and fellow case

team members that developed the habitat equivalency analysis (HEA) model the

Trustees used to scale liability for settlement purposes. I also managed the efforts

that produced the original parcel-by-parcel liability allocation and the subsequent

intra-parcel party-by-party sub-allocations that are the bases on which the

Trustees have entered into settlements with individual potentially responsible

parties (PRPs) or groups of PRPs. The HEA model and the parcel-by-parcel

allocation process are described in detailed at a web site maintained by NOAA at

www.cbrestoration.noaa.gov/settlements/hylebos.html. I was personally

responsible for developing the allocation analysis upon which the proposed

settlement in this matter is based.

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 3

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

5. Studies by the Trustees and by contractors for potentially responsible parties

(PRPs) as part of the EPA-led cleanup process have documented that large

quantities of hazardous substances have contaminated extensive areas of Hylebos

Waterway sediments. The contamination was deposited in the sediments by

surface water or ground water flows that carried the contaminants from areas of

adjacent upland facilities where they have been spilled or dumped. Sediment

contamination also resulted from direct releases to the water from dockside work

or vessels (e.g., ship building, repair or demolition) or from bank sloughing of

contaminated soils. The Trustees’ studies have demonstrated how the

contamination has harmed not only the organisms that inhabit the marine

sediments, but fish and wildlife that come into contact with the pollution or that

eat contaminated prey items. Because of the central role that the community of

organisms living in and on the sediments plays in the Commencement Bay food

web, the Trustees’ damage analysis for settlement is based upon the areal extent

of sediment contamination, and the length of time over which the contamination

has been injuring natural resources.

6. The Trustees' HEA model quantified natural resource damage liability for the

waterway in terms of discounted ecological service acre-years, or DSAYs. The

Trustees used DSAYs as an ecological currency to facilitate negotiating

settlements that allow PRPs to develop restoration projects instead of paying

monetary damages. The Trustees considered the injuries resulting from the range

of hazardous substances in waterway sediments and calculated that all the

contaminants the Trustees could link to industrial and commercial operations on

and adjacent to the waterway have generated a combined loss of 1,526.77

DSAYs.

7. To reach settlements with individual PRPs, the Trustees also developed an

independent allocation of the total DSAYs among the various facilities along the

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1

 Note that the Trustees used the terms “facility” and “site” interchangeably to refer to

discrete properties or industrial or commercial operations subject to the allocation. 

2

 A list of abbreviations for contaminants covered by the allocation is attached as

Attachment 2.

DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 4

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

Hylebos Waterway shown to have released hazardous substances. Trustee

contractors reviewed publicly available documents obtained from EPA, the

Washington Department of Ecology and the City of Tacoma public library to

evaluate activities that took place at those facilities that resulted in the release or

likely release of hazardous substances to the Waterway.

8. The Trustees’ allocation contractors first identified each facility along the

Waterway or potentially draining to the Waterway. A map of those facilities with

the facility names used by the Trustees is attached is Attachment A. To be subject

to the allocation, each facility had to meet a three-part test. There had to be

evidence of a pathway or means for contaminants to travel from the site1

 to the

waterway. There also had to be evidence of a site activity that was a likely source

of a substance of concern or which released a chemical likely to exacerbate the

impact of a substance of concern. Finally there had to be evidence of actual

environmental contamination on-site or in adjacent sediments by the substance of

concern.

9. For facilities that met the above requirements, the allocators used one of three

approaches to apportion liability:

(a) For most contaminants, the contractors were able to identify unique

footprints of chemical contamination attributable to individual facilities.

100% of the DSAY losses determined for each such footprint were

assigned to the associated facility.

(b) Contamination from polycyclic aromatic hydrocarbons (PAHs)2

 and

polychlorinated biphenyls (PCBs) was too widespread to allocate by

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 5

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

discrete footprints. For these substances, the waterway was initially

divided into five segments. The total DSAY losses for PAHs and PCBs for

each segment was then allocated among facilities shown to have released

the substances to the segment. This allocation used a relative mass loading

approach, taking into consideration the size of each contributing facility,

the number of years over which activities generating the releases occurred,

and an activity index based on a relative ranking of activities with respect

to their potential to release either PAHs or PCBs.

(c) Finally, in the case of certain footprints of other contaminants (e.g.,

copper footprint CU4, chromium footprint CR8, etc.), the evidence

showed that two or more facilities contributed to the footprint. A relative

mass loading approach comparable to that used for PAHs and PCBs was

used to divide the DSAYs attributable to those footprints among the

contributing facilities.

10. Using one or a combination of the above approaches, the contractors assigned

DSAY liability to each facility subject to the allocation on a contaminant-bycontaminant basis. The total DSAYs for all contaminants linked to a facility were

totaled to give a total liability allocation for the facility.

11. As part of the process of developing their allocation, the Trustees included review

and comment by three individuals familiar with the Commencement Bay

Superfund site, consisting of an EPA remedial project manager, a fisheries

biologist with the Washington Department of Fish and Wildlife, and an

independent consultant who had conducted preliminary PRP investigations.

12. In the case of the site identified by the Trustees as the AK-WA Shipbuilding

facility (formerly the Todd Shipyard, located at the mouth of the Waterway), the

facility was assigned the following listed DSAYs for the corresponding

contaminants:

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 6

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

Contaminant DSAYs Allocations

Arsenic (AS) 1.221 100% of AS13

Butylbenzyl phthalate (BBPH) 0.011 100% of BBPH17

Bis (2-Ethylhexyl) phthalate (BEPH) 0.771 100% of BEPH7 & BEPH8

Cadmium (CD) 0.108 100% of CD4

Chromium (CR) 2.861 100% of CR9

50% of CR8

Copper (CU) 18.363 100% of CU12

Diethylphthalate (DEPH) 0.020 100% of DEPH2

Dimethylphthalate (DMPH) 0.055 100% of DMPH4

Di-n-octyl phthalate (DOPH) 0.005 100% of DOPH6

Mercury (HG) 0.104 100% of HG14

Polycyclic aromatic hydrocarbons (PAHs) 366.652 26.67% of Segment 4

62.99% of Segment 5

Lead (PB) 0.078 100% of PB9

Polychlorinated biphenyls (PCBs) 41.027 8.62% of Segment 4

25.86% of Segment 5

Phenol (PNL) 0.126 100% of PNL1 & PNL2

Antimony (SB) 7.004 100% of SB15

Tributyltin (TBT) 9.548 95% of TBT12

Zinc (ZN) 7.262 100% of ZN11

Total 455.215

The codes in the third column refer to identified contaminant footprints. Based on

physical proximity and evidence of releases, most of the listed footprints were

apparently tied to the AK-WA Shipbuilding site and 100% of each such footprint

was allocated to the site. Liability for PAHs, PCBs, one chromium footprint

(CR8) and one tributyltin footprint (TBT12) was shared with other facilities, and

liability for those DSAYs was allocated using a relative mass loading process. A

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 7

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

 similar contaminant-by-contaminant process was followed to determined the total

liability for each site subject to the allocation.

13. It is important to note that the Trustees’ reporting of DSAY calculations to three

and four decimal places is not intended to imply that either the HEA model used

to calculate DSAY losses for the waterway or the process the Trustees used to

allocate those losses among facilities or parties have that level of accuracy or

precision. Re-analysis of the allocation done for any facility or party can, and

likely would, result in slightly different final numbers. As the Trustees have

negotiated settlements with additional parties at sites where some parties had

previously settled, the allocation calculations have produced figures differing by

as much as 1 to 2 percent. In addition, given the number of parties, facilities,

contaminants, concentration levels, habitat types, etc., addressed by the Trustees’

settlement model, it is likely that some level of transcription error may have been

or would be introduced into the calculations. However, the Trustees believe that

the range of outcomes from multiple re-calculations of a party’s liability would all

be within a similar ±2% range, and that any value within that range would be a

reasonable settlement for that party. Any difference between multiple recalculations would be insignificant relative to the settling party’s appropriate

share of liability for natural resource damages.

14. The Trustees initially allocated liability only among waterway facilities. A

number of facilities had had two or more operators or owners over the years who

apparently shared responsibility for the liability allocated to the facility. In those

cases the Trustees expected the affected PRPs to agree among themselves how to

sub-allocate the facility’s liability. However, it soon became apparent that the

Trustees would have to undertake a second-tier intra-facility allocation in order to

reach settlements with those parties. This resulted mainly from the fact that not all

identified parties were part of the settlement negotiations process, either because

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 8

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

some of the parties were defunct or otherwise not reachable or because not all

affected parties chose to participate in the negotiations.

15. The Trustees drew in part upon the remedial allocation report done by Matt Low

of TLI Systems, Inc. (“Low”) to develop the facility sub-allocations. Low was

retained by a group of 36 Hylebos Waterway PRPs to allocate liability for

remedial investigation and cleanup costs among Waterway PRPs. Low’s report

explains that his allocation involved a 5-year process of gathering information

from public sources, reviewing extensive factual disclosures by the parties,

conducting transcribed interviews of approximately 35 knowledgeable parties and

considering submitted position statements and oral arguments by the parties. The

Low report allocated costs among individual PRPs, unlike the Trustees’ facilitybased NRDA allocation. Consequently, his analysis relied heavily upon

information about which parties were engaged in different activities at different

times. The Trustees evaluated Low’s information and approach and determined

that, while it was not designed to address natural resource damages liability, the

information it contained was useful to the Trustees’ sub-allocation process and its

approach could be adapted to meet the Trustees’ needs.

16. Low’s allocation of investigation costs is based upon a system of multiplying a

series of numerical scores, specifically a Release Magnitude (RM) score, a

Sediment Quality Objective (SQO) score, and the number of years of operation of

an activity. The RM score takes into account the nature and magnitude of releases

containing contaminants of concern. The SQO score takes into account the

number of categories of SQO chemicals associated with the activity in question

and the severity of the chemicals identified in soils on the site or in potential site

pathways. The RM and SQO scores Low assigned necessarily involve some level

of subjective judgments. However, in the absence of any obvious way objectively

to compare different operations and releases, and given the fact that the Low

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 9

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

report has been accepted by many PRPs, it seemed a reasonable point of departure

for developing facility sub-allocations.

17. The Trustees used Low’s RM and SQO scores, except where noted. Low’s report

only addressed years of operation through 1998; the Trustees’ analysis includes

the years through 2003. Like Low, the Trustees multiplied the RM score, SQO

scores and years of operation to develop a total score per party. Where the

ownership and operation of a facility were split between different parties, the

Trustees followed Low in dividing the RM score 80:20 between the operator and

the owner. The party totals per facility were summed, and the percent that each

party’s score bears to the total facility score was calculated. That party percent

was multiplied times the DSAYs assigned to the facility for each substance of

concern (SOC) with which the party was involved. The total of DSAYs thus

assigned to a party for all SOCs was summed for a party-specific site DSAY

suballocation.

18. The United States was apparently involved at six different Waterway facilities

that are addressed by this settlement: the AK-WA Shipbuilding Site, the

Occidental Chemical Site, the U.S. Naval Reserve Site, the US Gypsum Site, the

General Metals of Tacoma Site, and the Kaiser Aluminum Site. The Trustees

allocated a share of liability to the United States at each of those sites. The

following discusses the suballocation approach on a site-by-site basis for those

sites.

19. AK-WA Shipbuilding Site

 (a) The site was allocated 455.215 DSAYs and $2,626,290.87 in damage assessment

costs. The U.S. Government’s sub-allocated share is 186.5242 DSAYs and 

$1,076,121.60 damage assessment costs.

 (b) As detailed above in paragraph 10, the Trustees allocated a total of 455.215

DSAYs to the site. Sub-allocating that liability among parties responsible for site

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 10

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

 operations requires a detailed examination of the history of site ownership and

activities.

 (c) The predecessor of Todd Shipyards built a shipyard on the site (plus a portion of

what is now Site 57 - Occidental) in 1917 as part of the World War I shipbuilding

effort. Following the war Todd used the site for building non-military vessels.

The yard operated from 1917 to 1925, at which time all operations at the site

ceased and the yard was dismantled. Todd subsequently sold 10.5 acres of the site

to Hooker Chemical (Occidental’s predecessor). The site was apparently dormant

from 1925 to 1939.

 (d) In the buildup toward WWII, Todd rebuilt the shipyard in late 1939 - early 1940

and began constructing vessels first for the Maritime Commission, then the Navy.

Todd constructed and launched a total of 74 warships under U.S. oversight

between the rebuilding of the shipyard in 1939 and the time shipbuilding ceased

in 1945.

 (e) Shipbuilding ceased after the war. In 1946 the site was designated part of the U.S.

Naval Station, Tacoma. In 1948 the United States purchased the Todd shipyard

property for use by the Navy. The Navy carried out ship berthing, maintenance

and repair and deactivation at the site during the period 1948-1960. Site activities

may have included dismantling and retrofitting of Liberty and Victory ships from

about 1946 to 1948. The site was declared excess in 1958 and sold in 1960 to the

Port of Tacoma.

 (f) Zidell Dismantling leased a portion of the site from the Port from January 1960

through May 1984. Zidell used the site for ship dismantling from 1960 to the mid1970's, and barge building from the mid-1970's through 1983. Many of the

dismantled ships were reportedly Navy vessels.

 (g) Tacoma Boatbuilding leased a portion of the site for boat building operations

between 1969 and 1987. Given the overlapping dates with Zidell’s operations, it

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 11

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

is presumed that the two companies were using different portions of the site.

 (h) AK-WA Shipbuilding leased a portion of the site between May 1986 and

approximately 1998 to conduct ship maintenance and repair activities.

 (i) Trident Seafoods currently berths a fleet of fishing and seafood processing vessels

on the site under a lease begun in 1997. Trident uses the site for maintaining and

repairing boats and equipment, and outfitting the vessels for fishing voyages.

Without further information to go on, the Trustees have assumed that the facility’s

operations under current permitting and regulatory regimes do not contribute

appreciable amounts of contamination to the waterway sediments.

20. Because of the complex site history, the suballocation analysis was performed on

a year-by-year basis. The Trustees first multiplied Low’s RM and SQO scores for

each party at this facility to generate a RM*SQO score per year. The Trustees

adopted Low’s decision to split the RM score 50:50 between the Navy and Todd

during WWII, and 32:48:20 between the Navy, Zidell and the Port for the ship

dismantling activities between 1960 and 1975. (The latter ratio results from

dividing the 80% operator’s share of the RM score between the two operators

based on years of operation.) The RM*SQO product for each party for all years of

the activity are summed and the resulting total score is assigned to each SOC

associated with the activity. A party is allocated a percentage of the liability for

each SOC based upon the relation of the party’s summed total scores for the SOC

to the total of all parties’ scores. The party’s percentage liability for each SOC is

multiplied times the DSAYS for the SOC footprint, portion of SOC footprint, or

share of the relevant segment (in the case of PAH and PCB) that is assigned to the

facility. This results in a DSAY allocation per site party per SOC. The total of the

DSAYs allocated to each party for all SOCs is summed to determine the party’s

total DSAY liability for the facility. To allocate the damage assessment cost

liability, each party is assigned a share of the facility’s assessment costs allocation

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 12

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

based upon the party’s percentage liability for the facility’s total DSAYs. The

total DSAYs and damage assessment costs attributable to the AK-WA facility are

thus sub-allocated among the parties as follows:

Party DSAYs Percentage Assessment Costs

U.S. 186.5242 40.97% $1,076,121.60

Todd Shipyards 54.7731 12.03% $316,004.66

AK-WA Ship Building 34.5426 7.59% $199,288.02

Zidell Dismantling 84.3247 18.52% $486,497.90

Tacoma Boat Building 42.2627 9.28% $243,827.90

Port of Tacoma 52.7878 11.60% $304,550.79

Totals 455.2151 99.99% $2,626,290.87

The sub-allocated shares total less than 100% due to the effects of rounding.

21. The operation of the sub-allocation for the AK-WA Shipbuilding site can be

illustrated using the SOC chromium (CR) and the sub-allocation to the Navy.

Paragraph 10 above explains the how DSAYs for CR were allocated to the site

(2.861 DSAYs).

Three different combinations of RM and SQO scores are used for the Navy

reflecting differing activities and contaminants and different party relationships

over the years as follows:

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 13

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

Activity Ship construction Ship construction &

dismantling

Ship dismantling

Potential

contaminants

metals, organics,

PAHs, PCBs

metals, organics, PAHs,

PCBs

metals, organics,

PAHs, PCBs

Years 8 (1940-1947) 12 (1948-1959) 16 (1960-1975)

RM score 25 50 16

SQO score 15 15 16

RM*SQO score 375 750 256

RM*SQO*Years 3,000 9,000 4,096

Remarks RM reflects 50:50

split with Todd

RM reflects

32:48:20 split with

Zidell, Port

RM*SQO*Years

total all activities

16,096

The product of RM score x SQO score x Years is calculated for each party for all

activities involving CR, and a party percentage for CR is derived. The percentage

is multiplied times the DSAYs for CR allocated to the site to give a party share

for those CR DSAYs as indicated in the following table.

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 14

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

Party RM*SQO*Years for

all activities

Percent of

Total

Share of CR

DSAYs

(2.861)

U.S. 16,096 43.01% 1.2305

Todd Shipyard 4,800 12.83% 0.3671

Zidell Dismantling 6,792 18.15% 0.5193

Tacoma Boat Building 3,009.6 8.04% 0.2300

AK-WA Shipbuilding 2,600 6.95% 0.1988

Port of Tacoma 4,124.4 11.02% 0.3153

Totals 37,422 100.00% 2.861

A similar process was followed for all involved parties for each of the

contaminants attributed to the site.

22. Occidental Chemical Site

 (a) This site, adjacent to the AK-WA site, also has a complex history, further

compounded by the fact that it was treated as two separate parcels (one of which

itself is composed of two tax parcels) in the Low allocation analysis. Hooker

Electrochemical Company, predecessor to Occidental Chemical Co., acquired

20.889 acres (the southern two-thirds of what Low identified as Parcel 2) in

October 1928. Occidental began operating a chlor-alkali plant in February 1929.

In 1937 Hooker/Occidental purchased the rest of Parcel 2 (the northern 10.5

acres) from Todd Shipyards. In addition to the chlor/alkali plant, the facility also

included an ammonia plant, a muriatic acid plant, and a calcium chloride plant.

Chemicals manufactured include sodium aluminate and aluminum chloride.

Hooker and Detrex Corporation operated a joint venture on the site to produce

trichloroethylene and tetrachloroethylene cleaning solvents from 1947 to 1956;

Hooker continued producing the solvents until 1973. Occidental sold the Parcel 2

operations to Pioneer Chlor-Alkali Company in 1997. Some waste from the

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 15

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

Occidental operations were also deposited on the area Low identified as Parcel 3.

The predominant uses of Parcel 3, originally owned by Fletcher Oil Co., were

operation by various parties (Fletcher, PRI Northwest, Tesoro Petroleum and

United Independent Oil) at different times of bulk petroleum storage and

distribution facilities. A tetraethyl lead plant was also operated for a short period

on the parcel by United Independent Oil and later by PRI Northwest. The Navy

was reported to have berthed ships at the Fletcher Dock on Parcel 3 from 1946 to

1960 as part of the U.S. Naval Station, Tacoma operations.

 (b) Low’s analysis reports that the U.S. through the Defense Plant Corporation was

the owner and possible operator of an aluminum chloride plant on Parcel 2 from

1942-1946. In addition, it appears that the WWII-era Todd Shipyards expanded to

occupy the northern portion of Parcel 2 (apparently the portion of the parcel that

had been sold by Todd to Hooker in 1937). Low reports that during the war years

the shipyard used areas of the shoreline along Parcel 2 for waste disposal and

incineration.

 (c) The site was allocated 241.261 DSAYs and $1,391,941.80 in damage assessment

costs. The U.S. Government’s sub-allocated share is 4.7327 DSAYs and

$27,286.13 in damage assessment costs (Defense Plant Corporation Share 0.4659

DSAYs and $2,686.12 assessment costs, U.S. Navy Share 4.2668 DSAYs and

$24,600.01 assessment costs).

 (d) The site allocation is based on 100% of unique footprints of several contaminants

(SB13, SB14, CR7, CU9, CU10, CU11, MDCB6, MDCB7,PDCB1, HCB6,

HCBD12, PB7, PB8, HG10, HG12, NI12, NI13, PCP1, TBT11, TCB3, ZN9 and

ZN10) and 50% of footprint CR8. The site is also allocated liability for PCB

(17.24% of the losses in Segment 4 and 51.72% of the losses in Segment 5) and

PAH (5% of the losses in Segment 4 and 11.81% of the losses in Segment 5).

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 16

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

23. Because separate portions of the site were used in different fashions by the

various parties, the Trustees multiplied the product of RM, SQO and years of

operation by the area (in acres) for the activity involved to do the sub-allocation.

As with the AK-WA site, the Trustees applied Low’s 50:50 split of the combined

score for the shipyard operations between 1942 and 1960 between Todd and the

Navy. The RM*SQO*Years*Acres scores for each party are summed and the

resulting total score is used to allocate each SOC footprint associated with the

activity. The remaining steps of the analysis mirror the process used for the AKWA facility to derive a DSAY total for each party. The total DSAYs and damage

assessment costs attributable to the Occidental facility are thus sub-allocated

among the involved parties as indicated in the following table:

Party DSAYs Percentage Assessment Costs

U.S. 4.7327 1.96% $27,286.13

Todd Shipyard 4.1584 1.72% $23,975.04

Occidental 231.8112 96.02% $1,375,790.25

Fletcher Oil 0.4979 0.21% $2,870.62

PRI Northwest 0.1425 0.06% $821.58

Tesoro Oil 0.0641 0.03% $369.57

United Independent Oil 0.0214 0.01% $123.38

Total 241.4282 100.01% $1,431,236.57

The sum of the DSAYs sub-allocated among the parties for the facility differs

slightly (241.428 vs. 241.261) from the total DSAYs originally allocated to the

facility, and the sub-allocated shares exceed 100%, due to the effects of rounding

coupled with artifacts of the Excel spreadsheet program in copying data between

worksheets. In addition, the assessment cost allocation to Occidental includes

costs specific to the company that were not allocable to other parties. Hence the

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 17

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

 sum of the assessment costs sub-allocations exceed the figure allocated to the

facility.

24. U.S. Naval Reserve Site

 (a) This site is complicated by the fact that the NRDA allocation site boundaries

encompass an area that Low treated as three different parcels, composed of

property currently owned by the U.S. Navy plus a Port of Tacoma warehouse

property (Low allocation Parcel 4). Apparently undeveloped before WWII, the

site appears to have been put to use as part of the Todd Shipyard expansion

during the war. The site was purchased by the United States for use by the Navy

in 1943 and it, along with the property purchased from Todd Shipyard and others,

was designated Naval Station Tacoma. The balance of the Naval Station (with the

exception of the current site) was declared excess in 1958, and was sold to the

Port of Tacoma in 1960. Naval Station activities on the site apparently included

ship berthing, shipbuilding and repair. The pier area was used as a commissioning

dock and portions of the site were also used for training.

 (b) In December 1982, Naval Reserve Maintenance and Training Facility (NRMTF),

Puget Sound, became a tenant on the site. NRMTF operated a repair barge and an

oily waste barge. The repair barge was moved offsite in 1988. In 1994 hazardous

substances and petroleum products were removed from the oily waste barge; it

was declared excess and moved offsite in late 1994 or early 1995.

 (c) The portion of the site now occupied by a Port of Tacoma warehouse (Low

allocation Parcel 4) contained four large storage tanks as early as 1936. This area

was sold to H.D. Maxwell in 1942, with possession apparently transferring in

1944. Prior to that time, Fletcher Oil Company is believed to have used the

storage tanks and have received petroleum by barge and truck. From 1944 to 1951

Maxwell leased the storage tanks to General Petroleum Corporation. In 1951, this

area was sold to the United States. The Navy subsequently used the property for

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 18

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

storing aviation fuel. After this portion of the site was sold to the Port, the storage

tanks were leased for storage of petroleum products to FOF, Inc. (apparent

successor to Fletcher Oil) from 1972 to 1980, and to PRI Northwest for 5 years

(apparently 1980 to 1985 when PRI Northwest discontinued operations on

neighboring Parcel 3).

 (d) The warehouse on the balance of remedial Parcel 4 was built by Naval Station

Tacoma and the property was used by the Naval Station as a shipyard and

industrial area. Parcel 4 was included in the sale to the Port of excess Naval

Station property in 1960. After being sold to the Port, this portion of the site has

been occupied and used by several tenants. Tacoma Boatbuilding apparently

occupied the area for up to 10 years, leasing part of the warehouse to store boat

parts and possibly doing boat refurbishing work on site. Several other tenants

have leased all or part of the warehouse at various times.

 (e) The site was allocated 45.866 DSAYs and $264,616.46 in damage assessment

costs. The U.S. Government’s sub-allocated share is 31.2555 DSAYs and

$180,323.15 in damage assessment costs (U.S. Air Force share 9.6439 DSAYs

and $55,638.80 in assessment costs, U.S. Navy share 21.6116 DSAYs and

$124,684.35 in assessment costs).

 (f) The site allocation is based on 3.33% of the PAH in Segment 4, 7.87% of the

PAH in Segment 5, and 100% of footprint CU8.

25. The Trustees employed a similar approach to that used for the Occidental

Chemical site to sub-allocate among the parties the liability for PAHs allocated to

the facility (i.e., using the product of RM*SQO*Years*Acres). The facility’s

liability for the CU footprint was allocated 100% to the U.S. because the U.S. was

the only party involved in site activities triggering for the related CU footprint

(ship berthing). The Trustees did not attempt a complete sub-allocation among

various U.S. agencies. The total DSAYs and assessment costs attributable to the

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 19

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

Naval Reserve facility are thus sub-allocated among the parties as follows:

Party DSAYs Percentage Assessment Costs

U.S. 31.2555 68.15% $180,323.15

Fletcher Oil Inc. 1.3562 2.96% $7,824.36

PRI Northwest 0.7534 1.64% $4,346.61

Lilyblad Petroleum 1.5069 3.29% $8,693.80 

Port of Tacoma 10.9941 23.97% $63,428.54

Total 45.8661 100.01% $264,616.46

26. US Gypsum Site

(a) The U.S. through the Defense Plant Corporation (whose successor is the General

Services Administration) built a calcium carbide plant on this site in 1942 and

leased it to Pacific Carbide & Alloys Co., who operated the plant until 1946.

Feltrock Insulation Co. manufactured rock wool on the site from 1947 to 1952. In

1952 the site and plant were sold (presumably by the Reconstruction Finance

Corp., which apparently reabsorbed its subsidiary Defense Plant Corporation in

1945) to American Rock Wool Corp., who owned and operated the rock wool

plant from 1952 through 1955. The site appears to have been inactive between

1956 and 1959. USG Interiors owned the site and operated the rock wool plant

from 1959 through 1996. Thermafiber LLC (formerly American Rock Wool)

purchased the rock wool plant in 1997 and has operated the plant since then.

Murray Pacific operated a log sort yard on a 4.6 acre portion of the site from 1970

through 1986. Murray Pacific acquired this portion of the site in 1992 and

conducted cleanup operations through 1996.

(b) The site was allocated 21.099 DSAYs and $121,729.42 in damage assessment

costs. The U.S. Government’s (Defense Plant Corporation) sub-allocated share is

1.7011 DSAYs and $9,814.21 in damage assessment costs.

(c) The site allocation is based on 100% of footprints CU3, PB2 and ZN4, and 75%

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 20

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

each of footprints SB6, AS9, and CR2. The site is also allocated liability for PAH

(1.68% of the losses in Segment 1, 4.39% of the losses in Segment 2 and 2.84%

of the losses in Segment 3).

27. The Trustees followed the same sub-allocation approach for the US Gypsum site,

also considering the acreage of operations as with the previous two sites. The

Trustees’ analysis differs somewhat from Low’s in that the Low analysis did not

identify Pacific Carbide, American Rock Wool or Feltrock Insulation as PRPs.

The Trustees also determined to split the RM score 50:50 between the Defense

Plant Corporation and Pacific Carbide and Feltrock Insulation, based on site

operations during the period of Defense Plant Corporation ownership of the site.

The RM*SQO*Years*Acres score per activity per party were calculated, the

scores summed for each party for all years and activities, and a site percentage for

each party is calculated based on the ratio of the party’s score to the total of all

parties’ scores for the facility. These percentages are used to sub-allocate among

the parties the liability for all SOCs allocated to the facility. The total DSAYs

attributable to the site are thus sub-allocated among the parties as follows:

Party DSAYs Percentage Assessment Costs

U.S. 1.7011 8.06% $9,814.21

Pacific Carbide 0.6419 3.04% $3,703.33 

Feltrock Insulation Co. 1.0592 5.02% $6,110.88 

American Rock Wool 1.6947 8.03% $9,777.29 

USG Interiors 12.9862 61.55% $74,921.68 

Murray Pacific 1.0251 4.86% $5,914.14 

Thermafiber LLC 1.9912 9.44% $11,487.89 

Total 21.0994 100.00% $121,729.42

28. General Metals of Tacoma Site

 (a) The site has been used for metal recycling, including vehicle crushing and ship

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 21

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

dismantling, since 1965. Former site owners Mr. and Mrs. Leslie Sussman (also

doing business as SRS Properties, Inc.) formed General Metals of Tacoma and

began site operations in 1965. The site was leased to General Metals of Tacoma

and the Sussmans initially owned the majority of the stock in the company. In

1981 the Sussmans sold their interest in the business to Acme Trading and Supply

Co. but retained ownership of the property and continued to lease it, through SRS

Properties, Inc., to Acme/General Metals. In 1992 the Sussmans sold the property

to General Metals of Tacoma. Schnitzer Steel purchased General Metals of

Tacoma in 1993. Low’s allocation also reported that Universal Metal Products

operated on the site from 1970 to 1975. The Low allocation report states that the

Navy arranged for ship dismantling at the site during 1972-1975.

 (b) The site was allocate 110.158 DSAYS and $635,539.93 in damage assessment

costs. The U.S. Government’s sub-allocated share is 2.7246 DSAYs and

$15,728.26 in damage assessment costs.

(c) The site allocation is based on 100% of unique footprints of several contaminants

(AS5, BEPH2, BBPH6, CD1, CD2, CR1, DOPH2, HG3, and ZN2), 15% of the

liability for footprint BBPH7 and 10% of the liability for footprint SB4. The site

is also allocated liability for PCB (32.52% of the losses in Segment 1, 49.79% of

the losses in Segment 2 and 27.49% of the losses in Segment 3) and PAH (8.40%

of the losses in Segment 1, 21.96% of the losses in Segment 2 and 14.20% of the

losses in Segment 3).

29. The Trustees’ sub-allocation analysis for the site followed the basic pattern for the

other facilities. In the absence of further information about the arrangements

between the Sussmans, General Metals of Tacoma, Acme Trading and Supply

Co., Universal Metal Products and Schnitzer Steel, the Trustees did not attempt to

determine the relative suballocation among those parties for purposes of this

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3

For purposes of a subsequent settlement, in United States, et al., v. AOL Express, Inc., et

al., Case No. C06-05204RJB, entered by the Court on June 16, 2006, the Trustees developed a

further sub-allocation as between the Sussmans and General Metals of Tacoma.

DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 22

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

settlement.3 The Trustees adopted Low’s 32:68 split of the RM score for the

shipyard operations between the Navy and the General Metals parties for the

years during which General Metals was dismantling ships for the Navy. The total

DSAYs attributable to the site are thus sub-allocated among the parties as

follows:

Party DSAYs Percentage Assessment Costs

U.S. 2.7246 2.47% $15,728.26 

General Metals parties 107.3380 97.50% $603,628.67 

ASARCO 0.0317 0.03% $182.99 

Total 110.0943 100.00% $619,539.92

The total differs from the 110.158 DSAYs shown in the Trustees’ allocation

reports for the facility due to rounding.

30. Kaiser Aluminum Site

 (a) The Defense Plant Corporation built an aluminum smelter on the site in 1941; it

was leased and operated by the Olin Corporation from 1942 through 1946. In

1947 Permanente Metals (the corporate predecessor to Kaiser Aluminum and

Chemical Co.) purchased the property and began operating the plant. With the

exception of a closure between 1958 and 1964, Permanente/Kaiser owned and

operated the plant until it closed permanently in 1999.

 (b) The site was allocated 109.749 DSAYs and $633,181.93 in damage assessment

costs. The U.S. Government’s sub-allocated share is 7.3863 DSAYs and

$42,618.18 in damage assessment costs.

 (c) Because the facility’s discharge point is located at the boundary dividing

waterway segments 1 and 2, the allocation of facility liability treats the discharge

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 23

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

as occurring half in Segment 1 and half in Segment 2. The allocation is based on

30.49% plus 8.13% of the PCB in Segment 1, 5.19% plus 12.45% of the PCB in

Segment 2, 6.87% of the PCB in Segment 3, 31.51% plus 8.40% of the PAH in

Segment 1, 9.15% plus 21.96% of the PAH in Segment 2 and 14.20% of the PAH

in Segment 3.

31. The Trustees’ sub-allocation for the site follows the basic pattern for the other

facilities. The Trustees adopted Low’s 50:50 split of the RM score for the plant

operations between the Defense Plant Corporation and Olin for the years during

which the Defense Plant Corporation was the plant owner and Olin the operator.

The total DSAYs and damage assessment costs attributable to the site are thus

sub-allocated among the parties as follows:

Party DSAYs Percentage Assessment Costs

U.S. 7.3863 6.73% $42,618.18

Olin Corporation 5.2759 4.81% $30,441.39

Kaiser Aluminum 97.0767 88.46% $486,805.72

Total 109.7389 100.00% $559,865.29

The DSAYs total differs from the 109.749 DSAYs shown in the Trustees’

allocation reports for the facility due to rounding. The total assessment costs

figure is less than the amount allocated to the site as stated above in paragraph

30(b) because the Trustees credited Kaiser Aluminum with previous payments of

assessment costs by the company.

32. The Trustees’ first-level allocation assigned a portion of the liability for waterway

DSAY losses to the Bonneville Power Administration (BPA) site. The allocation

was based in part on the understanding that there had historically been a pathway

to the Hylebos Waterway for surface water runoff from areas of the site where

there was evidence of past contamination. During the negotiations that resulted in

this settlement, the Trustees were given a report prepared by consultants for BPA

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DECLARATION IN SUPPORT OF MOTION TO ENTER 

CONSENT DECREE (C06-05225RJB) - PAGE 24

U.S. Department of Justice

NOAA GC - DOJ

7600 Sand Point Way NE

Seattle, WA 98115-0070

(206) 526-6616

showing that the area in question had not drained to the Hylebos. The Trustees

found the report’s conclusions reasonable determined to waive their claims

against BPA.

33. For all affected sites, the U.S. Government’s liability is sub-allocated share of

liability is as follows:

Site DSAYs Assessment Costs

AK-WA Shipbuilding 186.5242 $1,076,121.60

Occidental Chemical 4.7327 $27,286.13 

U.S. Naval Reserve 31.2555 $180,323.15

US Gypsum 1.7011 $9,814.21

General Metals of Tacoma 2.7246 $15,728.26

Kaiser Aluminum 7.3863 $42,618.18

Total 234.3244 $1,351,891.53

33. The Trustees initially quantified their natural resource damages claims using

DSAYs as the ecological currency in order to facilitate settlement with parties

willing to undertake restoration themselves under Trustee oversight. The Trustees

recognized, however, that a number of parties may not wish to develop restoration

projects but instead would prefer a cash-based settlement. For cash-based

settlements the Trustees estimated what it would cost them, per DSAY gained, to

develop habitat restoration and offered to settle on a dollar equivalent basis of

$52,000 per DSAY plus allocated assessment costs. Converting the above DSAY

numbers to a cash settlement in this fashion produces the following U.S.

Government liability:

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