In connection with the Model Toxic Control Act (MTCA) Interim Agreement for the Cornwall Landfill, the Port of Bellingham conducted a State Environmental Policy Act (SEPA) review and issued a Mitigated Determination of Non-Significance (MDNS.) The proposal for interim action allows “beneficial reuse” of dredged and dioxin-contaminated sediment for a stormwater “cap” at the Cornwall Landfill. Because this proposal lacks adequate controls for dioxin contamination, increases the toxicity of a geologically hazardous MTCA site, and reduces MTCA cleanup levels, it should be denied under SEPA.

MTCA Cleanup Level Reduced
The SEPA process for the proposed action appears premature. The MTCA cleanup level that will be used at this site has not been determined. The Port is requesting a reduced cleanup level, and the Department of Ecology will not decide this issue until the RI/FS and cleanup action plan are completed. Neither the public, nor the Port, can undertake an informed SEPA review, or determine the appropriate threshold determination and necessary mitigation, without an established MTCA cleanup level.

Under state law, the MTCA Method B cleanup level is applicable at this site based on future land use. Sediment testing has established the Port will be unable to meet this cleanup level with sediment dredged from Squalicum Harbor, Gate 3. (Amendment to Agreed Order, Page 2-4.) Dioxin levels in some testing locations were more than twice the established threshold (Id.)

It is noteworthy that the dredged sediment is subject to as much review as the MTCA site itself. (Soil Characterization Report, Biological Evaluation, and JARPA Application for Gate 3, SEPA Checklist, Paragraph 8.) This is because the material being used to cap the MTCA site is also hazardous. It is the toxicity of the material being used for an interim cleanup, rather than conditions inherent to the MTCA site, that violate applicable cleanup standards. This calls into question the purpose and necessity for the proposed action.

Because the Port can not meet normal cleanup levels, it is proposing “onsite containment of hazardous substances above the cleanup levels” based on use of MTCA Method C. (Amendment to Agreed Order, Page 2-4, 2-5.) There are several fundamental problems with this request. The interim project was developed as a stormwater proposal, and was not engineered for containment of hazardous substances, as specifically noted within the interim Agreement.

Additionally, Method C provides less stringent exposure assumptions for lifetime cancer risk. Unlike Method B, this cleanup level does not require evaluation of upland plant impacts, although dioxin is known to enter the food chain and contaminate plants. It is unclear how the Port can proceed with an interim action yet determine there will be no significant environmental impacts.

Mitigation Does Not Address Dioxin
The Interim Agreement is based upon three significant contingencies, none of which are discussed in the SEPA notice. Because these contingencies are not guaranteed, neither is the success of the interim action. The Port states that Gate 3 sediment is appropriate for beneficial reuse IF:
1) dioxins are prevented from leaching into groundwater, and
2) the sediment is properly capped, and
3) the cap integrity is ensured through institutional controls. (Amendment to Agreed Order, Page 2-4, 2-5.)

These contingencies mandate strict oversight of the construction phase, and equally rigorous post-construction monitoring. It is not clear that the Port’s proposal meets this heightened level of review. The Port notes that performance monitoring will “primarily consist of construction quality assurance” in the form of observation by the Port engineering team. (Amendment to Agreed Order, Page 3-15.) The nature and extent of this oversight is not indicated. To what extent will matters of public health and safety be left to self-policing efforts by the project contractor?

Post-construction monitoring, which will focus on stormwater effectiveness, raises additional concerns. (Amendment, Sec. 3.5.3, Page 3-16.) The Port will not be able to monitor groundwater and surface water for dioxin contamination. Existing laboratory methods of analysis are not sensitive enough to detect whether the levels of dioxin in water exceed safety standards. (Amendment, Sec. 3.3.3, page 3-10.) Impacts that cannot be measured cannot be mitigated.

Because the primary problem posed by dioxin is land based, monitoring stormwater will not address this matter. For example, it will not cover the most problematic part of the proposal. The “dewatering” process at an interim site, located at 300 Laurel Street, will spread dredged and contaminated sediment on the ground before it is conditioned. It is unclear that adequate MTCA requirements are in place for this action.

Finally, the four conditions listed as mitigation for the SEPA process are actually Best Management Practices (BMP) that are already required for construction activities. Therefore, these are not really mitigated conditions at all. Moreover, BMP’s, as this term is commonly used and understood, are developed to address stormwater issues. Again, stormwater requirements, including BMP’s, are not developed for protection of people, land, water, or air from dioxin contamination.

MTCA Site Is Geologically Hazardous
As reflected on DOE and city maps, the Cornwall Landfill is located on filled waterfront land that is inherently unstable. The site is a potential landslide hazard, a seismic hazard, and is subject to shoreline erosion. During an earthquake, filled land is subject to dangerous liquefaction. A Whatcom County CAO map indicates the site is located within a 100 year flood plain. The interim agreement includes an analysis of possible pathways for dioxin exposure, but fails to address the problems posed by a natural disaster. (Amendment, Sec. 3.3, Page 3-8.)

No Cost/Risk Analysis Conducted
The stated purpose of the interim agreement is to beneficially reuse the dredged sediment. Although a cost/risk analysis has frequently been incorporated into Port and DOE actions at Waterfront MTCA sites, no cost/risk analysis was used here. Shouldn’t the alleged cost/savings of the proposal be weighed against its risk?

Since the Port must dredge the sediment as part of scheduled routine maintenance, and can no longer use open water disposal, the interim agreement serves as an inexpensive upland disposal solution for the Port. Thus, this project primarily benefits the Port. However, the public assumes the risk that they will be exposed to dioxin if the interim action is not handled properly or there is a natural disaster.

No Beneficial Reuse Analysis
The beneficial reuse provisions of WAC 173-340-200 are not mentioned or addressed in the interim agreement. Because beneficial reuse is the purpose and the predicate condition for the interim action, this is an important omission.
Additionally, although not disclosed publicly, the Port has asserted they are exempt from the normal beneficial reuse procedural requirements.

Beneficial reuse provisions prohibit the storage of contaminated waste at an application site during times of precipitation. However, the Interim Agreement allows the Port to end dump the sediment at the Landfill, and then progressively spread the sediment over the site. This action is planned for the rainy season and requires only the placement of a sheet over the sediment when it rains. It is not clear if work will stop during times of precipitation, or if time constraints require working with uncovered sediment. This is counterproductive to the stated purpose of the interim action, and possibly of the beneficial reuse provision.

Construction Impacts
Construction timing is based upon the migration of salmonid species. (Amendment, Sec. 3.2.6, Page 3-7.) The interim agreement fails to reflect consideration of impacts to other fish and wildlife species. For example, migrating shorebirds use the site, which is on the Pacific Flyway Zone, and seabirds use Bellingham Bay as wintering habitat. Harbor seals and pups use haul out logs in the area. There are a number of species protected under federal and state law that require a more considered approach.

Future Uses
Under MTCA regulations, clean-up standards and clean-up actions must protect human health and the environment for “current and potential future site and resource uses.” WAC 173-340-702(4); WAC 173-340-700(5.) The impacts of future development on the interim agreement have not been properly considered.

The overwater bridge, which will connect the Cornwall Landfill to Boulevard Park, is intended draw a large volume of people to the Waterfront District via a shoreline trail along the Landfill. The Draft Master Plan for the Waterfront District includes development of the Cornwall Beach Park, with public access to shorelines for swimming and non-motorized boat launching, as well as significant multi-story, mixed-use, commercial/residential development. It is highly questionable whether it is prudent to place a dioxin contaminated cap over a MTCA site slated for significant shoreline redevelopment. This may also impact investor potential.

Since there will be substantial redevelopment occurring at this site, the possibility exists of disturbing the waterproof sheet relied upon to contain dioxin. The City advised that construction of the Cornwall Overwater Walkway may require driving piles through the waterproof cap. This will also be an issue for the numerous other developers who will invest in the Cornwall Landfill. The Port has stated that private developers are individually responsible for meeting institutional controls, suggesting there will be insufficient oversight of future development activities.


The above comments are included in my letter to the Port for their SEPA determination. If you would like to comment on this proposal, the Port is accepting public comment until July, 6, 2011. Comments may be sent to mikes@portofbellingham.com.