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The U.S. Environmental Protection Agency is working on a final cleanup plan that could be released by the end of the year. It is expected to include an estimated total cost for cleaning up the harbor, which would be divided among the many parties that contributed to the pollution, including, potentially, the City of Portland.


PORLAND TRIBUNE FILE PHOTO - The U.S. Environmental Protection Agency has designated the Portland Harbor a Superfund site because of many years of industrial pollution. it is a finalzing a cleanup plan that the City of Portland might have to pay a share of.Who will pay the city’s share of the Portland Harbor Superfund cleanup cost remains unresolved after a Multnomah County judge postponed ruling on the question Wednesday.

The U.S. Environmental Protection Agency is working on a final cleanup plan that could be released by the end of the year. It is expected to include an estimated total cost for cleaning up the harbor, which would be divided among the many parties that contributed to the pollution, including, potentially, the City of Portland.

The city has already spent over $60 million studying its potential liability, including more than $50 million paid by Bureau of Environmental Services ratepayers. During a Wednesday morning hearing before Circuit Court Judge Stephen Bushong, Portland attorneys argued the ratepayer spending was justified because most of the city’s potential liability is related to the sewer system operated by BES.

“If the city is found liable, it’s because of the conveyance system,” said Assistant City Attorney Karen Moynahan, using a legal term for the sewer system that emptied into the harbor through a series of outfalls.

But lawyers representing ratepayers responded the entire city is potentially liable for the cleanup costs, not just those billed by BES for sewer and stormwater management services.

“Why should only a portion of the city be responsible?” asked attorney John DiLorenzo, who noted the outfalls into the harbor existed long before BES was formed in 1983.

The hearing was held as part of a lawsuit that was filed in December 2011. It charges that the council has repeatedly violated the City Charter by spending ratepayer funds on projects not directly related to the primary missions of the utility bureaus, in violation of the City Charter. The Superfund spending is just one category included by the ratepayer lawyers in the suit.

Both sides at Wednesday's hearing had submitted summary judgement motions asking Bushong to rule in their favor. But the ratepayer lawyers also said they had not been able to complete their court-authorized research into how the city determined BES’s potential liability. They complained about receiving thousands of page of requested city records at the last minute and not being able to depose an expert retained by the city to help determine what BES might be liable for.

Bushong has previously ruled in the lawsuit that BES and Water Bureau ratepayer spending must be "reasonably related" to the primary mission of the two utilities. He said the questions raised about the potential liability for the Superfund cleanup were very serious and should only be answered after all requested information has been obtained and analyzed. He said the delay would give the ratepayer lawyers more time to analyze the documents they recently received, and to schedule a deposition with the city’s expert.

The city does not actually believe it has any liability for the pollution in the harbor that caused the EPA to list it as a Superfund site, said Moynahan. But she argued that because the EPA has identified Portland as a potentially responsible party because of the sewer system, the city had no choice but to spend money — including ratepayer money — to prepare its legal defense.

DiLorenzo countered the defense costs should have been paid with general fund dollars and by city agencies which generated the stormwater that traveled through the sewer system into the harbor, such as the Portland Bureau of Transportation. He produced excerpts from depositions taken of former BES Director Dean Marriott which suggested the City Council designated BES as the lead agency on the cleanup process because of its environmental expertise, not because of its potential liability.

Marriott also said BES would be reimbursed by other city agencies after the final cleanup costs are determined and allocated. DiLorezno said that meant the council was using the sewer fund as a bank to make loans, which is not allowed by the City Charter.

The proposed EPA clean plan is estimated to cost $746 million. A majority of the council said work on it should begin as soon as possible. Environmentalists and some community partners say the plan does not go far enough and want the EPA to require a more extensive clean up of the harbor, which could cost $1.76 billion of more.

“No one’s liable until we know what has to be cleaned up,” Moynahan said.

Bushong so far has found in favor of both sides on a number of specific expenditures cited in lawsuit filings. Although Bushong has upheld the legality of the most expensive expenditures so far, he has also ruled that up to $13 million in water and sewer funds have been misspent over the years.

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