PORT ANGELES — For city officials, the road to financial help in cleaning up west Port Angeles Harbor might point 55 miles southeast to Port Gamble Bay.
The bay is central to a legal challenge by a company that last year unsuccessfully sued the state Department of Natural Resources in Kitsap County Superior Court to help fund cleanup of the inlet there.
Pope Resources LLP, the Poulsbo-based enterprise created by Port Gamble Bay mill operator Pope & Talbot, has appealed the June 8, 2015, ruling to the state Court of Appeals.
Pope insists that DNR, as the manager of state-owned aquatic lands on which the pollution lies, should help pay cleanup costs as a “potentially liable party,” or PLP.
Port Angeles city officials are issuing a similar DNR-bears-responsibility refrain.
The City Council unanimously decided Jan. 5 to join in a friend-of-the-court, or amicus, brief with Georgia-Pacific LLC supporting Pope’s efforts at no cost to the city.
The Department of Ecology designated the city, Georgia-Pacific, the Port of Port Angeles, Nippon Paper Industries USA, forest services company Merrill & Ring, DNR and Owens Corning as PLPs in the pending west Port Angeles Harbor cleanup.
DNR and Owens Corning are not participating in the cleanup.
Ecology samples from sediment in the westernmost inner harbor area near Nippon showed the presence of metals, mercury and dioxins.
Nippon is being held responsible for some of the legacy pollution to the harbor as the owner of the Ediz Hook pulp mill, which has been in operation for decades.
City Finance Director Byron Olson said Tuesday the city has committed at least $200,000 — part of which includes funds from previous insurance carriers — to the cost of Ecology’s ongoing state remedial investigation of the western harbor.
The review will determine the extent and magnitude of pollution, evaluate potential impacts on human health and the environment, and evaluate cleanup alternatives.
Rebecca Lawson, southwest regional section manager for Ecology’s toxics cleanup program, said Tuesday the investigation could be completed by December.
City Attorney Bill Bloor said Tuesday that if Pope wins the appeal, the same principle that would make DNR a PLP in Port Gamble could apply to DNR, which manages a portion of the Port Angeles Harbor’s aquatic lands.
“A lot of contamination is in Port Angeles Harbor is located on property that the DNR manages, so they would be a potentially liable party,” Bloor said.
“There have been many, many instances across the state where the DNR has been a PLP and contributed something to a cleanup.”
But last summer, in an eight-sentence summary-judgment and order, Superior Court Judge Anna M. Laurie sided with DNR.
“[The DNR] is not among the categories of persons alleged by [Pope] liable under the Model Toxics Control Act at the Port Gamble Bay and mill site, and accordingly, is not an ‘owner’ or ‘operator’ as those terms are defined under RCW70.105D.020,” Laurie said.
DNR aquatic lands spokesman Joe Smillie said Tuesday the agency remains “hopeful” the Division II Court of Appeals will uphold the Superior Court ruling.
“It is state land managed by us, but we were not engaged in business on it,” he said.
Bloor said the case could be significant not only for the city but other municipalities with shorelines near or next to DNR land.
“The Superior Court’s ruling means that DNR can authorize, profit from and ignore polluting activity on its land and then treat the pollution as someone else’s problem,” Bloor said in a memo to the City Council.
Ecology also named DNR as a PLP “on the basis of its ownership and/or management of aquatic lands,” according to Bloor’s memo.
The appeal may take some time to wend its way to a decision.
DNR’s response to Pope’s opening brief is due Dec. 28.
The Port Gamble Bay amicus brief that the city will take part in is due 45 days after DNR’s response.
Lawson said the Port Angeles remedial investigation has been delayed by Ecology having to apply new sediment management standards.
They attempt to trace pollution exposure pathways from fish and other sea life to humans to determine the impact on human health.
“Before, the standards were just focused on the benthic, just the harm to critters,” Lawson said.
She said a cleanup cost, which could entail dredging or capping polluted areas, has not been determined.
But the process could be complicated.
“What goes into the western part of the harbor tends to stay there,” Lawson said.
“That’s part of the reason we are seeing some of the highest levels [of pollution.]”
________
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at pgottlieb@peninsuladailynews.com.