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Olympia’s review of a proposed development leaves the question unanswered

What toxins lie under the ground at Green Cove?

The City of Olympia has again ignored state law in its handling of developer Jerry Mahan’s application to build family homes on a toxic waste dump. The City issued a “Mitigated Determination of Nonsignificance” (MDNS) which allows the project to move ahead, without having first made a threshold determination about its environmental impact.

The City’s use of an MDNS as a threshold determination was earlier ruled unlawful by the Court of Appeals in a 2005 case between the City of Olympia and Thurston County. According to the Court’s ruling in that case, “an MDNS can be issued only after a threshold determination is made that an environmental impact statement is unnecessary.”

It is clear that the use of an MDNS to enable construction of family homes on a former industrial toxic waste dump is a perversion of the State Environmental Policy Act.

Yet when the City issued its MDNS to Green Cove Park LLC, it set a public hearing before the Hearing Examiner for January 23, 2023– the last step before a project gets the go-ahead.

The City claims it is acting in accordance with the law in spite of the Court of Appeals ruling to which it was a party. The MDNS had been issued despite City staff’s recommendation the project be denied because the effectiveness of the proposed mitigations was “unclear.” Green Cove occupies a critical aquifer recharge area affecting city and private wells, endangered species and federally impaired bodies of water. It is clear that the use of an MDNS to enable construction of family homes on a former industrial toxic waste dump is a perversion of the State Environmental Policy Act—especially when essential facts about the toxic nature of the site have yet to be identified, let alone addressed.

A flurry of public comments opposed the issuance of the MDNS and urged the City to follow staff advice and deny the project. When developer Jerry Mahan appealed the mitigations required by the MDNS, the City decided to postpone the public hearing to March. This allows Mahan what will be a fifth opportunity to meet City requirements.

It is noteworthy that Mahan is contesting the requirement that he obtain a “No Further Action” letter from Ecology certifying that the site has been cleaned up to Model Toxic Control Act standards. Mahan argues this is not “reasonable,” and proposes compliance with the Formal Order for cleanup instead.

Any appeal of a city land-use decision requires a $1365 filing fee. (By contrast, Seattle charges $85 and appeals are free before the Growth Management Hearings Board and the Pollution Control Hearings Board.) City appeals go to the City’s Hearing Examiner, Mark Scheibmeir. Scheibmeir is a real estate investment attorney with clients in Olympia who has consistently ruled in favor of developers in his ten years with the City. At least 3 people, including the Green Cove Defense Committee, have asked for his recusal on grounds that his participation violates the Appearance of Fairness, a doctrine that requires a decision-makers to withdraw from a process when there is even an appearance of possible bias.

The City of Olympia has not issued a single Determination of Significance—a finding that would trigger an Environmental Impact Statement–since at least 2005. In spite of the Appeals Court ruling, the City has used an MDNS as a threshold determination close to 50 times over the last few decades for projects such as 123 4th Ave downtown, Wellington Heights, Briggs Village Senior housing, and many other large (100+units) housing projects around Boulevard Way, Capital Mall, and Kaiser Rd NW among others, thus avoiding the cost and greater scrutiny of an Environmental Impact Statement.

The Green Cove Defense Committee has submitted a Petition to the Department of Ecology to repeal WAC 197-11-350 (Mitigated DNS) because it is unnecessary, unclear, imposes unreasonable costs, conflicts with other state laws and was not adopted according to applicable provisions of law.

The Green Cove Defense Committee hopes that exposing this abuse of the MDNS to public scrutiny will motivate the Department to ensure that the SEPA process is not undercut by expediency, and that environmental and public health remains its top priority.

It is just this kind of intense public scrutiny that convinced Ecology to put the Sundberg site under a Formal Order for cleanup in 2020. The Committee is urging Ecology to take over lead agency status for the project, since the City has not done a proper threshold determination for at least 18 years.

The Department of Ecology has 60 days to respond to the Petition. Concerned residents can contact Rebecca Lawson to ask Ecology to take over lead agency status, and the Rules Coordinator at the Department of Ecology to support the Petition to Repeal WAC 197-11-350.

Esther Kronenberg on behalf of the Green Cove Defense Committee

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