UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10 1200 Sixth Avenue, Suite 900 canoe OF ENVI ONMENTAL Seattle, WA 98101-3140 CLEANUP EEC i 201% Mr. Mike Cohen Point Ruston, LLC 5219 N. Shirley Street, #100 Ruston, Washington 98407 Mr. Rodney Brown Cascadia Law Group 1201 Third Avenue, Suite 320 Seattle, Washington 98101 Dear Mr. Cohen and Mr. Brown: I am in receipt of a letter dated October 13 from Mr. Rodney Brown, representing Point Ruston, explaining that Point Ruston disagrees with interpretation of the CERCLA 121(e) permit exemption, and implying that utility installation work and other development construction will continue without following applicable state and local permitting procedures. Point Ruston?s continued insistence that it is broadly exempt from building and utility permitting is gravely concerning to the EPA. The EPA does not dispute that the permit exemption is ?self-implementing,? but we strongly disagree with your characterization that the remedial action somehow includes construction activities that are exclusively to develop the site and unnecessary to remediate the site. Structures, such as buildings and parking garages, are not exempt from permitting; only that portion of the structure that constitutes the cap (such as a pad foundation) would be covered under the permit exemption. Even when exempt, that portion of the structure must be built in compliance with all applicable building codes. Additionally, any supporting infrastructure, such as gas, electrical, water, and sewer lines are not part of the cap, since they are constructed to provide service to residences and businesses, and are not a physical part of the remedy. It is inappropriate for Point Ruston to assert the CERCLA permit exemption to avoid the routine permitting process in place to ensure that structures and utility construction complies with state and local code requirements designed to protect public safety. Point Ruston?s argument that utilities are part of the remedial action is premised on a single sentence in the Record of Decision (ROD) stating the remedial cap design will plan for future development, including utilities. Planning for future utility development was accomplished by incorporating a clean, joint utility trench into the cap design. This trench provides a clean corridor to facilitate installation and future access to utilities without exposing capped contaminated material. To be clear, the joint utility trench is part of cap design and therefore part of the remedial action, but the installation of utilities within the trench has nothing to do with protecting people?s health or the environment from contamination at the site because the utilities themselves clearly would not be part of the remedial action. Your letter also indicates that Point Ruston is prepared to litigate this issue. What constitutes ?remedial action? at the site will invariably be based on an interpretation of the remedial action that the EPA selected in our ?nal ROD. Accordingly, I expect a court would defer to interpretation of its own ROD, and our interpretation, which has been consistently communicated since the permit exemption issue first arose in October 2013, is that utility infrastructure placed within the clean joint utility trench is not part of the remedial action. Regional and headquarters leadership at the EPA all agree that the Agency has a signi?cant interest in assuring that the CERC LA permit exemption is properly interpreted and applied at Point Ruston and at other similar projects. The Agency is deeply troubled by Point Ruston?s continued misapplication of the exemption to structures and utilities without proper state and local regulatory oversight which poses a very real and serious threat to the cleanup remedy already in place and to public safety. Point Ruston?s recent denial of access to an inspector from the State of Washington attempting to inspect the liquid petroleum gas line only exacerbates this concern. We strongly urge Point Ruston to stop all unpermitted utility installation and seek proper legal authorization from the relevant state and local agencies that have the expertise to assure utility installation is code compliant. Point Ruston?s failure to comply with both the applicable permitting procedures and substantive permitting requirements is not only potentially dangerous to public safety, but is also endangering the remedy at the site and may result in the EPA being unable to certify completion of the remedy at this site. Point Ruston is directed to contact the EPA Project Manager, Mr. Kevin Rochlin, to schedule a meeting as soon as possible between the EPA, Point Ruston, and the City of Ruston to de?nitively address this issue and bring Point Ruston back into compliance. Failure to comply with this requirement may result in enforcement actions necessary to ensure the public safety. If you would like to discuss this letter, your legal representation can contact Alex Fidis, Assistant Regional Counsel at 206-553-4710, or myself at 206-553-8696. Sincerely, up; Cami Grandinetti Program Manager Remedial Cleanup Program cc: Sara Crumb, Of?ce of Senator Maria Cantwell Mindi Lindquist, Of?ce of Senator Patty Murray Joe Dacca, Of?ce of Congressman Derek Kilmer Mayor Bruce Hopkins, City of Ruston Tacoma City Manager TC Broadnax Mayor Marilyn Strickland, City of Tacoma Councilmember Ryan Mello Councilmember Robert Thoms Councilmember Anders Ibsen Councilmember Lauren Walker Councilmember Marty Campbell Councilmember Joe Lonergan Councilmember/Deputy Mayor Victoria Woodards Councilmember David Boe Councilmember Lyle Hardin Councilmember Jim Hedrick Councilmember Jane Hunt Councilmember Deb Kristovich Councilmember Syler