The Bellingham Bay Foundation carefully reviewed Ecology's Consent Decree, Draft Cleanup Action Plan and Responsiveness Summary for the Whatcom Waterway cleanup site. A formal response was submited to Ecology today, which you can read below. A pdf of this response can be downloaded by clicking here.

Thank you,
Frances Badgett
frances@bbayf.org

COMMENTS SUBMITTED TO:

Lucille T. McInerney, P.E.
Site Manager
Department of Ecology
3190 160th Avenue
Bellevue, WA 98008-5452
Phone: (425) 649-7272
E-mail: lpeb461@ecy.wa.gov

WHATCOM WATERWAY
CLEANUP ACTION PLAN
RESPONSIVENESS SUMMARY

Dear Ms. McInerney:

The Bellingham Bay Foundation submitted principles during the RI/FS public comment period in December of 2006. The purpose of those principles was to work through the problems and potential remedies with a pragmatic view of Ecology's role and capabilities. These principles called for a higher level of cleanup than proposed by the Port. We stand by these principles as our community moves into the Cleanup Action Plan and Responsiveness Summary phase of the Whatcom Waterway project. We seek a remedy that values permanence over short-term financial considerations, and more protective monitoring for contamination left behind. We believe the public deserves more reassurance than provided in this DCAP and Responsiveness Summary about the permanence and protectiveness of cleanup of the toxic legacy left behind by Georgia-Pacific and accepted by the Port of Bellingham.

We maintain that the alternative proposed by the Port of Bellingham and endorsed by the Washington State Department of Ecology is not protective enough of human health and safety, not permanent in its preference for capping over removal and upland disposal of contamination, and not preventative enough in monitoring for potential cap failures.

We request that the Washington State Department of Ecology work toward more permanent solutions for the Whatcom Waterway, and to consider that the permanence of mercury in the environment requires a cleanup that is equally permanent. We request that the marina become secondary to a thorough cleanup.

Regulatory vs. Planning
Ecology has determined that the Bellingham Bay Demonstration Pilot is not regulatory in nature, and therefore not considered a valid metric of the methods or goals of cleanup. Contradicting this philosophy, the planning decision of a marina (which Ecology also states is not within their purview) drives the entire justification for widespread capping and minimal permanent removal of mercury from the aquatic environment. "Clean Ocean Marina" is not a regulatory standard to which the Port of Bellingham must strive, but it is used by Ecology to suggest that it is a regulatory (and clean) aquatic standard. All of the alternatives proposed in the RI/FS documents were in compliance with regulations. We find this regulatory vs. planning distinction used far too conveniently by Ecology to justify a Bellingham Bay Foundation Response to the Washington State Department of Ecology's sub-standard remediation of the Whatcom Waterway, and to bolster the remediation of the ASB (which is relatively clean) as a proper cleanup.

Responsiveness Summary
We contend that the response offered to our comments (and to other leading environmental groups) did not fully address our concerns. With a grant from the Washington State Department of Ecology, we had the advantage of excellent guidance from Greg Glass-a leading environmental consultant in the State of Washington-and we were charged with educating and engaging the public in the public comment period. Regrettably, the work we put into commenting, the work we put into getting the public to comment, and the work we did with Greg to create workable and sustainable solutions for the Whatcom Waterway was not reflected in the dismissive summary responses from Ecology. We are disappointed that very substantive and detailed comments were lumped together and addressed together. The responses did not reflect the substantive comments offered from this community. Also, we submitted signatures from the Healthy Bay Initiative and additional signatures from a petition we circulated in favor of removal over capping, and those were not counted among the comments, but were addressed (and, again dismissed) at the end of the summary. Breaking up comments into sections also watered down the community's overwhelming criticism of the Port's preferred remedial alternatives 5 and 6.

Log Pond Cap
Ecology failed to assure us adequately that ground water at the Log Pond was not affected, either from upland sources (the former Chlor-Alklai facility) or from other sources within the Whatcom Waterway. If the Log Pond Cap's rise in contamination is-as is stated in the Responsiveness Summary-from the unremediated sediments in adjacent areas, then we contend that mercury is moving along the cap's surface and that the cap is receiving unacceptable levels of contamination from nearby areas. Given that the previous Log Pond Cap was presumably engineered to be protective of the marine environment and, in a few short years, shows erosion and damage, we feel that the remediation of the Log Pond will be inadequate.

An argument against removing the Log Pond in its entirety is that habitat has begun to re-establish in that area, and dredging would destroy this habitat. However, armoring, repairing, and re-capping the eroded areas of the cap are likely to harm if not destroy this habitat as well.

The monitoring period for the Log Pond has been extended to 30 years, but the frequency of monitoring has not increased. The problems with monitoring are frequency as much as length. 30 years is also not long enough given the permanence of mercury. Also, the DCAP states, "Cap designs considered in the RI/FS are intended to provide stable conditions that do not require active scheduled cap maintenance." Given the lack of integrity in the current cap structure, we do not have confidence that the cap will be stable and effectively seal off contamination from the aquatic environment in the future. Given that the Log Pond serves as the capping model for the entire Whatcom Waterway, we require that the capping be absolute in its efficacy. Since this is not the case, we would be most comfortable with the complete removal of the Log Pond from the aquatic environment by hydraulic dredging, and thick capping over the residual contamination.

The financial analysis for capping and monitoring is inadequate. The financial analysis does not include repair and maintenance of the cap, because the cap's engineering will not require additional maintenance. We insist that regular cap maintenance be calculated as part of the cap repair for the Log Pond, particularly given the wave action and turbidity of the water, the possibility of prop wash, the increase in sea level from Global Warming, and other factors that can severely impact the structure and integrity of the cap. The Log Pond analysis also has only two monitoring events in its schedule. The cap at the Log Pond and the caps in and around other areas of the Whatcom Waterway will have to monitored closely given the mix of residential population nearby, the possibility of increased boat traffic in the Whatcom Waterway, and other factors.

The ASB
The Bellingham Bay Foundation offered several options for the use of the ASB as an interim remedial tool in cleanup as well as a receiving area for sediments (as illustrated in previous preferred remedial alternatives). The response from Ecology was inadequate. In order to hydraulically dredge the Log Pond and Inner Waterway, a contained facility nearby has to be available to receive the dredge spoils. We recommended using the ASB as an interim step in remediation, and requested this step be considered carefully. We did not receive a response that addresses our suggestion, because of the planned use of the ASB for a marina. It is contradictory for Ecology to use the planned use of the ASB as the basis for the Cleanup Action Plan, then claim to have no stake in the planning process for the ASB. We would like to see a full evaluation of the temporary use of the ASB for remediation purposes.

The Inner Waterway
We are encouraged to see increased dredging in the Whatcom Waterway for the purposes of remediation, but hydraulic dredging is preferable to mechanical dredging. We encourage Ecology to cap thickly over dredged areas, and to dredge more extensively for remediation.

The BSL
The BSL requires a conservative application to ensure its protectiveness. Bellingham should benefit from a cleanup level that is, without this mechanism, already sufficiently protective. We recommend the SQS as the appropriate cleanup level for sensitive and regular consumers of fish from Bellingham Bay, including the Nooksack Tribe and Lummi Nation, their children, and the elderly.

Human Health Risk Assessment
The Foundation rejects the notion that the BSL is conservatively applied, therefore no Human Health Risk Assessment is necessary for the Whatcom Waterway. We insist a HHRA be provided to the public to ensure the efficacy of cleanup.

Additional Concerns
We are disappointed that the shoulder of the ASB and the area near the Bellingham Shipping Terminal are all scheduled for capping rather than dredging. We are also disappointed that Starr Rock falls under monitored natural recovery. We would like to see these areas dredged and thickly capped over the residual contamination.

Conclusion
As we move forward in this process, we ask two questions:

A. What does successful cleanup look like?
B. What does failed remediation look like?

Successful cleanup would be in line with the Governor's goals of having a Puget Sound safe enough for swimming, digging, and fishing. Our community has been cut off from the proper use and enjoyment of the Whatcom Waterway for over a century. We will never be able to revisit this moment at which we make these critical decisions about the future health of our bay.

But a failed remediation could be even worse than the industrial area we have now: we could have sick children, eroding caps, unhealthy habitat, and, worst of all, we could be the ones to set the tone for remediation Sound-wide, so that our low level of cleanup, this mediocre Alternative 6, would become the rule, rather than the exception. Ecology is under no compulsion to capitulate to the Port. As is stated in Section 5 of the DCAP, "Ecology reserves the right to consider other information, including issues raised during public comment, and/or to conduct its own evaluation of alternatives to assist in making its cleanup decision." It is our hope that you will assume this power that you've been given and listen to the many pleas from our community for a higher level of cleanup than proposed in these documents.

Sincerely,
The Bellingham Bay Foundation

13 August 2007