Clean-up at Green Cove due to community research and persistence

A journey of a thousand pages…

It’s official. The developer who proposed to turn the Sundberg industrial site in West Olympia, into the “Green Cove Park” housing subdivision was informed by the Department of Ecology that the site will be listed under the Involuntary Cleanup category of the Model Toxics Control Act (MTCA). The letter named the developer, Jerry Mahan, as the Potentially Liable Person (PLP).

It took a village

Getting to this point took extensive effort by individuals in the community, including a final hurdle last winter. This 16-year journey involved three LLCs; five incomplete land-use applications; nearly 1500 pages of reports; undocumented and uncountable hours of taxpayer-funded City staff time. It was tracked by committed members of the public who conducted research, filed hundreds of comments in opposition, signed petitions and submitted formal complaints.

As a result of this investigation and ongoing public involvement, in July 2020, the Department of Ecology put the project site on its Confirmed and Suspected Contaminated Site List (CSCSL), making it subject to the Model Toxics Control Act (MTCA).

The City of Olympia returned Mahan’s most recent project application as incomplete, and gave him 6 months to submit the additional information needed for a No Further Action (NFA) determination under MTCA.

Mr. Mahan then hired a toxic cleanup consultant from Hawaii (who is not legally registered in the State of Washington), and improperly approached Ecology in an attempt to enter their Voluntary Clean-up Program (VCP) in order to obtain an NFA determination without filing an actual application. Ecology refused to consider Mahan’s request because, in the absence of a formal filing, such a request is illegal.

Meeting with the authors of this article and several neighbors, Ecology made firm commitments to put the site under the Involuntary Cleanup Program. This will require Mahan to pay for extensive independent investigation, reclamation, cleanup and monitoring of the site.

Ecology makes a commitment

Ecology has promised extensive public involvement in the planning, investigation, cleanup and monitoring process. The Department is working on a fact sheet describing this process for interested parties and will accept testimony from anyone who has knowledge of activities at the site.

According to Ecology, negotiations for an Agreed Formal Order normally take about 4 months, followed by a 30-day comment period. The order will include a Remedial Investigation and Feasibility Study (RI/FS) and draft Cleanup Action Plan (dCAP). Ecology and the public will then review the draft plan to identify gaps, and allow public comment.

The RI/FS will be finalized after public comment and Ecology will prepare a draft Cleanup Action Plan and negotiate a new Order with Mr. Mahan to begin the cleanup process. Given the duration and amount of contamination, this will be a long and complicated process.

60+ years of contamination free of oversight

Current and former owners and operators of businesses and other activities on this site have put up to 60’ or more of commingled fill into the old gravel pit and former canyons on this site. The Sundberg gravel pit only had a legitimate permit for mining from 1972-1979. The County didn’t issue subsequent permits for gravel mining or excavation after the 1979 permit expired until the site’s annexation into the City in 2006.

Despite issuing dozens of violations, the Department of Natural Resources (DNR) never took enforcement action. The 1979 DNR Reclamation Permit, which is routinely re-issued and requires all non-native materials be removed from the site and the mining excavation be reclaimed with clean materials and vegetation, has yet to be fulfilled.

A permit was neither requested nor issued for allowing disposal of solid and hazardous waste on this site. Yet, City, County, DNR and Ecology records show it served as a convenient place for the City, County, Port and developers to dump solid and hazardous waste from projects on other sites in this area, just 4 minutes from the Port of Olympia and downtown.

For example, in 2005, City staffers received several reports that the then owner, Ted Sundberg, had accepted materials for disposal from off-site and the Port, including fill from around underground storage tanks.

The City’s Engineering Plans Examiner noted that he knew the City had dumped the excavation material from the crosstown gas main onto the Sundberg/Mahan waste site. No permit was ever requested or issued for Weyerhauser’s log yard and bark removal and disposal operation from the 1960s until 1990. By that time, Weyerhaeuser and Mr. Sundberg had filled entire canyons with bark laden with Agent Orange-type herbicides.

The City, like the County, did not collect taxes on the commercial mining, log yard, or waste dumping operations on the site. When neighbors complained to the City about work being done without permits, the City said they would issue a permit after the fact—something they cannot legally do.

Approve a residential development on a toxic dump site?

The City spent years working with Mahan on his proposal to build family homes on top of a hazardous waste dump. What’s more, the site is in the middle of an environmentally sensitive area in the City’s extended capture zone for one of its primary wells, connected to the State’s Strategic Groundwater Reservation. The Reservation drains into two inlets of the federally protected yet impaired waters of Puget Sound, home to endangered and threatened species.

Yet the City went out of its way to assist Mahan as he repeatedly failed to provide required information, instead submitting five separate and deficient land-use applications to develop the Sundberg site.

1-Sept. 2004 Canterwood Investments LLC, applied to build 204 units.

At the time, Mahan didn’t own the property and it was outside the City limits. In 2006, City Attorney Bob Sterbank noted that the “City lacked jurisdiction to review or approve the application until the property was legally located within the City.” Staff helped Mahan by annexing the property into the City, accepting his application as complete and reviewing almost 500 pages of documents.

2-Early 2007 Westbrook Investments LLC application.

When the annexation was complete and the project vested, Mahan submitted a new application. City staff determined that the accompanying reports made claims not supported by data and lacked site specific detail, especially in regard to hydrogeology and water quality information, which was “particularly important as the site lies within the extended capture zone of one of the City’s primary public groundwater supply facilities.”

Instead of supplying the data required by the City, Mahan withdrew his application. He received a refund of $51,141, 50% of the fees paid to the City for 4 years of staff time, including a court case with the Boundary Review Board to complete the annexation.

Further, because the 2007 project was an integral part of the 2006 annexation, the City should have completed a State Environmental Policy Act (SEPA) review including an analysis of the impacts from this project, but it did not. Nor did it consult with agencies with jurisdiction and expertise, such as DNR and Ecology. The City’s annexation action unlawfully ignored the potential impacts of the project and concomitant urban redevelopment in the rural Green Cove Creek Basin Area.

3-2015, an application to build 157 houses.

In 2014-15, neighbors had been following truckloads of fill that were being dumped on the site from other building projects in the area and submitted photos of fume-emitting floating docks from Swantown Marina and rusty barrels of solidified resin and other industrial waste to the Department of Ecology in a formal complaint. Mahan let the application lapse rather than provide the necessary data.

4-2016 Green Cove Park LLC to build 177 houses.

This time, Mahan submitted a SEPA checklist that falsely claimed that the hundreds of dump truck loads of waste reported in 2015 had been removed. Reviewing almost 500 pages of documents, the City again noted the developer had neglected to include enough information about contamination and the effects of the project on critical recharge areas and groundwater. Mahan again let the application lapse rather than provide the necessary data.

5-2019 Green Cove Park LLC to build 181 houses.

This final application contained the same deficiencies that had been present since the original submission in 2004. The reports had minor updates, none of which addressed the key contamination issues—despite the 562 pages of documents. Heather Burgess, Mahan’s lawyer (and attorney for the Thurston Chamber of Commerce), went so far as to send a letter berating the City for treating Mahan as if the development site were subject to the Model Toxics Control Act. Ironically, a few months later, it was on MCTA’S Confirmed and Suspected Contaminated Sites List.

More help for the developer and potential liability for the city

In late 2019, with no public review, the City of Olympia purchased a 5-acre toxic site for a “neighborhood park” from Sundberg’s heir, apparently as an amenity for the Green Cove housing Project. The City’s consultant stated there was no contamination evident, but failed to contact the neighbor who had witnessed asphalt, asbestos, sheetrock and concrete being buried on the City’s “park” site.

As part owner of Sundberg’s old contaminated industrial site, the City is now, in effect, a partner in liability with Mahan, as a known Potentially Liable Person (PLP) under MCTA. The City becomes jointly and severally liable for the cost of the toxic cleanup of this site along with Mr. Mahan and any other PLP’s, such as the Port, City and others, whose waste will be identified in the course of investigation. The initial price tag for the 5-acre “park”—$138K—just got bigger.

Local residents’ actions protected the public

The City needs housing and revenue, and Mr. Mahan offered both. The Green Cove Park Project would have brought in millions of dollars of impact fees and property taxes. But at what cost?

From the time of annexation in 2006, there was strong and consistent opposition to building homes on a hazardous landfill. Each neighborhood meeting was well attended with citizens voicing reasoned concerns about their water, their health, the environment and the future liability of the City. Some provided extensive research on the history of the site, on toxins and on state and federal laws designed to protect the public from harm.

Hundreds of letters and emails from individuals and civic groups including the League of Women Voters of Thurston County, the Sierra Club, OlyEcosystems and the Squaxin Island Tribe argued against the project. Besides the Applicant, there was no public support for locating family homes where dangerous toxins were likely to be found.

Without the persistent investigation and critique of this land use application by dedicated citizens and strong public pushback, there is little doubt the City would ultimately have approved the project. Instead, the site may need to be monitored for years, perhaps decades, and it is unlikely that housing will be built there anytime soon.

Esther Kronenberg & Jerry Dierker are residents of the Green Cove Watershed.