Federal environmental officials and the developer of Point Ruston have been at odds for more than a year over how the developer is using an exemption in federal law meant to encourage cleanup of contamination. The officials now contend the developer is using it to ignore building codes in the city of Ruston.
The Environmental Protection Agency says the developer is stretching the limits of a federal law that allows construction without local permits on Superfund sites such as Point Ruston, which is contaminated with arsenic and lead.
“The EPA is very concerned that Point Ruston is using the umbrella of permit exemption to potentially avoid complying with relevant laws,” Cami Grandinetti, a top official at the EPA who oversees environmental cleanup in the Pacific Northwest, said Monday. “We’re concerned because of the potentially catastrophic failures that might be there” if things aren’t built to code and result in contamination being released.
Loren Cohen, the legal representative and son of the project’s developer, Mike Cohen, said he has no reason to believe that anything is not meeting code, and if anything is not meeting code, it will be fixed.
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Cohen also put the blame for any potential code violations squarely on the city of Ruston.
“The issue of whether or not Point Ruston has met the town of Ruston’s codes is the centerpiece of the dispute between Point Ruston and the town of Ruston,” he said. “The town doesn’t interpret their codes in any way that the professional team associated with this development understands.”
Point Ruston has said for years that it is trying to overhaul an eyesore and a small town is standing in its way. What’s gone unnoticed is that federal and state agencies also have concerns.
The developer’s battle with the city came to a head Jan. 22 when Point Ruston said it planned to ask for annexation to the city of Tacoma, saying Ruston is unwilling and unequipped to handle the major land-use decisions the project requires.
Cohen said the project is using the federal law as intended: to overcome “a rogue local government that refuses to work with the developer.”
Point Ruston has complained about the city missing meetings, not returning phone calls and breaking promises. It wants to continue working on the project rather than be stymied by Ruston’s refusal to allow them to work at all, Cohen said, an issue the developer has complained about for years.
He blamed the EPA for failing to broker a solution, and said he planned to take the issue over what the federal permit exemption actually covers to federal court in a few weeks.
The EPA is not the only regulatory agency concerned about the building practices at the Point Ruston site. Washington state officials last fall investigated whether a propane distribution system was installed correctly.
The developer since has told the agency it plans not to use the distribution system.
Now, the state is investigating whether it has jurisdiction over a propane tank and gas lines on another part of the site. They serve the Copperline condos and apartment building and were installed without state officials’ knowledge.
The regulatory agencies’ concerns could be a factor in the Tacoma City Council’s public hearing Tuesday (Feb. 3) on Point Ruston’s proposal to cut the city of Ruston out of the development by annexing the nearly 43 acres that aren’t already within Tacoma where construction has been progressing.
Tacoma city Councilman Ryan Mello said last week that people should be skeptical about “some parties who are trying to cause unnecessary drama” ahead of any annexation talks — referring, he said, to the city of Ruston and the EPA.
“I would encourage the EPA to not get too far out in front of themselves in listening to just one side of this complex story,” Mello said.
Councilman Robert Thoms, meanwhile, urged caution.
“Whatever the EPA suggests needs to be done is first in my mind,” Thoms said. “Public safety and remediation of the site is the No. 1 priority.”
Point Ruston sits on waterfront land that formerly was the site of the Asarco copper smelter. The development’s south half is in Tacoma. Its north half is in Ruston.
The area was designated as a federal Superfund site in 1983. It needs a massive cap on top of the contaminated soil. The temporary cap, still visible on parts of the site, is sand topped with thick plastic. The permanent cap is the Point Ruston development — all its roads, buildings, sidewalks, trails, parking lots and the rest that will cover the entire site when it’s finished.
With many cleanups, the process is relatively simple: An area is cleaned up and capped, and development occurs later. But at Point Ruston, the capping and development are happening at the same time.
Superfund sites are governed by federal law. One section allows for work to be done without local permits, if the work is solely related to cleaning up contamination. In the case of Point Ruston, the EPA defines that work as any building, road or other structure that directly touches the soil.
For example, the developer can build infrastructure for a utility, but not install the line. Another: The EPA must approve the light pole that will stick into the ground, but the light itself must be handled as part of a regular design and permitting process.
The permit exemption isn’t permission for a construction free-for-all. A company doesn’t have to pay a permit fee or go through an administrative process, but the work must be done as though a permit had been issued. All relevant codes, rules and laws must be met.
That’s the heart of the issue for the EPA: Its role is limited to ensuring the arsenic and lead are cleaned up, but it is concerned about how the Point Ruston team, including Mike and Loren Cohen, is going about it.
“EPA does not do buildings. We don’t do gas pipelines. We’re not interested in doing that,” Grandinetti said. “But I don’t feel like we can be silent. The Cohens are using the (federal permit exemption) to not comply with local requirements.”
The developer has asserted its right to build the following things without local permits. The EPA agrees these items fall under the federal exemption, because they are adequately serving as a cap, but it and Ruston contend they weren’t built up to the standards that would be required of projects going through the permit process:
•A parking garage:
The developer asked the city for a permit in March 2014. According to the city of Ruston, it asked for more information aboutplumbing plans and fire resistance
. In September, the developer cited the federal permit exemption and began construction. On Sept. 8, according to a notice of violation from the city of Ruston, a building official noticed the walls weren’t being enforced with enough rebar. The problem was corrected, city documents say, but the developer hasn’t allowed the city to inspect it. The city issued a stop-work order for the garage foundation on Dec. 19.
•A retaining wall:
The developer asked the city for a permit in October 2014. The city of Ruston approved a draft building permit in early December for a retaining wall only, not as part of an above-ground structure or a building foundation wall. However, city records say, the developer built the wall above ground and differently than the plans submitted to the city. The city issued a stop-work order on Dec. 19 after a Point Ruston representative said the developerplanned to continue anyway
without a permit, citing the federal exemption.
•A gas pipeline:
In September, the city of Ruston found out about a liquid propane system being installed during a site visit. The city issued astop-work order
on Oct. 1. About a week later, Point Ruston then submitted an application that did not list an engineer of record, did not list the types of materials the pipes were made of and did not include engineer’s calculations, according to city records. The developer was observed filling the trench on Dec. 30, in violation of the stop-work order. The city sent a notice of violation to the developer on Jan. 20.
A domino effect is at play. The city of Ruston won’t issue permits until the city has been satisfied. The developer contends the city can’t be satisfied, so it builds under the exemption. The city then issues notices of violations, raising the EPA’s concern about code compliance.
“To the extent that they built this stuff and they never want to use it as a parking garage,” Grandinetti said, “we’re good with this as a remedy. But given that the future use is to be a parking garage, there are those requirements they need to meet.”
Cohen said codes are being met on all projects, even if the City of Ruston isn’t inspecting the projects. The developer has contracts with independent engineers who provide quality control on the project both for the site cap and the construction.
Last August, the developer’s frustration with the city of Ruston burst into public view. The developer filed a $150 million claim — a precursor to a lawsuit — against the city, alleging it was preventing the developer from doing the cleanup.
In a letter two months later, Rodney Brown, a lawyer for Point Ruston who specializes in Superfund law, told the EPA that the developer needed to use the permit exemption in the federal law to get anything built on the Ruston side of the project.
No matter what the EPA thinks about whether the federal permit exemption applies, Brown wrote, “Point Ruston has as much right as EPA to interpret the exemption.”
“Point Ruston’s reliance on the (federal) permit exemption is the only thing ensuring that construction within the city of Ruston’s jurisdiction can continue,” Brown wrote. “For EPA to lose sight of this fact is very disconcerting.”
Correspondence between the EPA and the developer last fall over the permit exemption issue show both sides strongly disagree with the other over how the exemption works.
In a Dec. 1 letter, Grandinetti addressed developer Mike Cohen and lawyer Brown. Copies of the letter were sent to every member of the Tacoma City Council, the Ruston City Council, to the state’s U.S. senators, and to Rep. Derek Kilmer, whose congressional district includes Point Ruston.
“Point Ruston’s continued insistence that it is broadly exempt from building and utility permitting is gravely concerning to the EPA,” it began, going on to describe Point Ruston’s use of the permit exemption as “inappropriate” and the agency as being “deeply troubled.” The letter closes with a warning that the developer’s actions are jeopardizing the entire cleanup.
That is not the case, Cohen said.
“The development is cleanup, and the cleanup is the development,” he said. “We have used the same designers, architects, engineers as we have on the Tacoma side. We are designing a single project that happens to be in two municipalities. Working in Ruston is a flawed process.”
Grandinetti said top leadership at EPA headquarters in Washington, D.C., is now paying attention to Point Ruston. The agency is looking at whether it can enforce any potential violation of the law that governs Superfund cleanup.
A PIPE IN THE GROUND
Point Ruston’s building of a gas pipeline without permission also worries the EPA.
On Sept. 25, an inspector with the Washington state Utilities and Transportation Commission responded to a complaint of an unpermitted propane gas line on the Ruston side of the property. The city of Ruston’s building and fire code official had expressed concerns.
The state inspector came to the Ruston side of the development and found a pipe in a trench, but no gas.
The inspector “found that they were in fact building a propane system,” said Joe Subsits, the chief pipeline engineer for the state’s Utilities and Transportation Commission, which regulates certain gas pipelines. “So we had some concerns because some of the work had already been done” and his agency had no record of it.
In late November, the commission mailed the developer a list of possible violations and other concerns about the potential propane distribution system on the Ruston side.
For instance, the developer did not submit plans on time, and a worker told an inspector he had thrown away paperwork on how to calibrate a pipeline pressure meter.
Grandinetti said the developer’s actions regarding the gas system on the Ruston side are the “most egregious” illustration of how it’s pushing the federal exemption.
“I don’t think anyone would say, ‘I have a contaminated site and I capped them with gas pipelines,’ ” she said. “They are necessary for development, but that needs to comply with all of the other regulations because gas is explosive. If it explodes, it destroys our remedy.”
Cohen said Monday the developer’s plans for a gas distribution system on the Ruston side have been abandoned.
Subsits said his agency accepts that explanation, but his agency still is investigating because of an active propane system on the Tacoma side of the development.
Sometime in November, the inspector noticed a propane tank with two lines in use: one to the fireplaces and barbecue grills in each of the 43 Copperline condos; the other to a generator, boiler and three common-area fireplaces in the Copperline apartment building.
The commission now is investigating to determine if the Tacoma tank and lines are under its jurisdiction. That covers tanks that are in the public right of way, which the Point Ruston tank is not; and single tanks that serve more than 10 customers.
Cohen said the single tank serves one customer: the Copperline homeowners association. Therefore, it did not fall under state rules that require notification of the UTC about gas infrastructure 45 days before work begins.
Those state rules govern gas pipeline companies, Cohen said, and Point Ruston is not that. Cohen said Friday that the city of Tacoma issued a permit for the tank and lines.
“We believed at the time we were following all the rules,” Cohen said.
PROPOSED ANNEXATION ADDS TO TENSION
On Jan. 22, the developer of Point Ruston announced its petition to have the Ruston part of the project annexed into the city of Tacoma.
The annexation process is long and unlikely to succeed under current law. Even if Tacoma’s council approved it, Ruston’s City Council would have to approve it as well. Ruston Mayor Bruce Hopkins said doing so would mean the end of the city.
On Friday, several Tacoma council members said they viewed annexation as a last resort. Their main concern is financial.
As part of the plan to encourage development and complete the site’s cleanup, the city of Tacoma borrowed $31 million for roads, sidewalks, underground utilities and ornamental street lights on both sides of the city limit. The Point Ruston property owners will pay the money back over the next few decades. Without this investment in public infrastructure, city officials have said, the Point Ruston development would have been dead in its tracks.
But with building stalled on the Ruston side, council members say the delay could threaten Point Ruston’s ability to pay back that debt. Even with the specter of EPA concern, Tacoma City Councilwoman Victoria Woodards said she won’t shy away from an annexation.
The EPA’s concern “would cause me to want to work more closely with Point Ruston,” she said. It’s not just about paying back the $31 million: “It’s about time we developed something on our waterfront.”
Several Tacoma council members said Friday they did not know the depth of concern that the EPA expressed in their letters to Point Ruston, despite at least one being sent directly to them.
Councilman Thoms is perhaps the council member most familiar with the environmental condition of the Asarco site. He was a member of U.S. Sen. Maria Cantwell’s staff in 2006, when the site was transferred to the Point Ruston owners for cleanup and development.
Thoms says he is comfortable with the EPA asking questions, but he doesn’t think annexation is necessary to clean up the parcels and continue development.
“I don’t think we have to go that route, but it’s a discussion worth having,” he said. “There’s been a challenge here, and it hasn’t been on (Tacoma’s) side.”