City disputes threatened Foss cleanup fines

The City of Tacoma disputes the U.S. Environmental Protection Agency’s threat this week to fine the City more than $2.4 million for delays associated with cleanup of the Thea Foss and Wheeler-Osgood waterways, according to a statement released Thursday by the City.

The City, which volunteered in 1994 to lead the cleanup of the Superfund-listed waterways, began major construction work in 2002. The plan outlining this work includes an “enforceable schedule” governed by the federal consent decree between the City and EPA. The consent decree allows EPA to fine the City up to $1,000 a day for the first 14 days (and then up to $8,000 per day) for missing any of the interim deadlines outlined in the enforceable schedule.

EPA’s threatened penalties, in a letter received May 11, are based on deadlines the federal agency says the City missed. According to the letter, EPA said the City should have completed the St. Paul Waterway disposal site by Dec. 29, 2004. The City completed it March 3. The letter also points out that the City did not complete a habitat area by Sept. 22.

The City has requested reordering the work and the interim deadlines to finish this highly complex, $90 million cleanup as close as possible to the original schedule. The City still expects to complete the four-year construction by February 2006, within two months of the original plan.

“We are flabbergasted that EPA would take this kind of punitive—and, in our minds, unconscionable—action against the City,” Public Works Director Bill Pugh said. “We have worked long and hard on a cleanup that’s so important to our community. We are also keenly aware that our residents are footing the bill for this valuable, but expensive, project.”

As part of its plan approval in November 2003, EPA insisted that a proposed construction schedule become the project’s enforceable schedule despite the City’s concerns about tying penalties to a schedule the City considered optimistic.

When it became apparent that the City’s contractor would not meet November 2003 deadlines in the original aggressive schedule, the City, as specified in the consent decree, sent EPA the contractor’s proposed new schedule and a letter outlining the reasons the contractor said it could not meet the deadline. In addition, the City and its contractor modified the schedule to include additional environmental safeguards. The City and its contractor worked together to reorder the sequence of activities to catch up as much time as possible while waiting for EPA to approve the new proposed schedule completing the project only two months later than the original schedule.

EPA, at the same time Wednesday that it threatened penalties, denied the request to modify the enforceable schedule.

Since the May 2003 signing of the consent decree, three issues have complicated the project:

— EPA failed to use its authority under the federal Superfund law to streamline the initial permitting and approval process with other federal agencies. EPA’s inaction delayed the onset of work despite the City’s cooperation with multiple agencies to submit project plans early and respond promptly to each request for more information.

— EPA’s insistence on designating the contractor’s proposed construction schedule as the enforceable schedule that allows fines for any missed interim deadlines.

— EPA’s refusal to consider revising the schedule when the City and its contractor reordered the sequence of activities to make up for delays related to the initial permitting and approval process and later recontamination issues. This refusal to revise the schedule effectively punishes the City for its efforts to finish the cleanup on time.

In its letter, EPA said it would wait until the cleanup is complete to decide how much in penalties, if any, the federal agency would assess the City. It also would consider requesting construction of additional habitat.
The City plans immediately to dispute the accruing penalties.

The City has no incentive to delay cleanup. The sooner the waterway is clean, the sooner the City can reap the economic benefits of its environmental leadership.

“A consent decree provides EPA with a tremendous amount of power,” Pugh said. “That power is intended to compel recalcitrant parties to finish a cleanup. That’s clearly not the case here. Tacoma is committed to finishing a project that has been such an important part of our city’s revitalization.”
For more information on the City’s Superfund cleanup, visit