What's next for the Superfund cleanup?
Over 150 different businesses and governments might be liable for a share of the Portland Harbor cleanup bill. Now comes the hard part - getting them to pay.
After 17 years of study and research, the U.S. Environmental Protection Agency has finally approved its cleanup plan for the Portland Harbor Superfund site.
Now comes the hard part — persuading more than 150 businesses and governments responsible for polluting the harbor to pay the estimated $1.05 billion cost of cleaning it up. Those who later purchased polluting properties also are on the hook.
The challenge increased when the price tag of the plan released Jan. 6 was significantly higher than the $764 million to $811 million outlined in the preliminary proposal released last year. The Port of Portland, which is expected to pay a share of the cleanup cost, immediately expressed concern the actual price could be closer to $2 billion.
Two of Oregon's state senators — Democrat Betsy Johnson and Republican Ted Ferrioli — also called the new cost too high. In a Jan. 11 letter, they urged the state's congressional delegation to prevent what they called "EPA's midnight order from harming Oregon residents, workers and businesses."
But other Potentially Responsible Parties, as they are officially called, signaled they are ready to move the plan forward. Gov. Kate Brown will ask the 2017 Oregon Legislature to approve $10 million in bonding capacity to jump-start the cleanup. The state is potentially liable for pollution generated from properties owned by the Oregon Department of Transportation and the Division of State Lands. The money would be spent sampling numerous locations in the harbor to help develop a detailed cleanup plan.
"The State believes strongly that it is time for action," Oregon Department of Environmental Quality Interim Director Richard Whitman and Brown's Natural Resources Director Jason Minor wrote the EPA is a letter signaling the state's acceptance of the final cleanup plan.
The city of Portland also is willing to contribute to the cleanup plan. Mayor Ted Wheeler and Commissioner Nick Fish are partnering on the issue. Fish is in charge of the Bureau of Environmental Services, which the City Council designated as the lead agency on the project years ago. It already has spent over $50 million in ratepayer funds preparing for the cleanup. A Multnomah County Circuit Court judge declared the spending legal in the final ruling on a long-running ratepayer lawsuit against the city issued the day before the final EPA plan was released.
"We are entering the next phase, which will require the expenditure of additional funds. The city will play a leadership role in bringing willing parties together to move forward," Fish said.
Fish also said the city is committed to improving public involvement in the next phase of the cleanup process, and is exploring how to do that. He expects to request some amount of one-time general fund dollars and BES ratepayer funds in next year's budget to move the plan forward.
Still, the big question is, what will the other parties do? Many of them have been negotiating over the issue for years in a confidential "allocation process." They are participating in an organization called the Portland Harbor Participation and Common Interest Group, whose coordinating counsel is Bruce White, a Chicago environmental attorney.
None of the group's members or representatives contacted by the Portland Tribune would talk about the negotiations because they are confidential. Fish said he expects some will voluntarily join the state and city in financing the early next steps of the cleanup plan. But he also won't be surprised if some start lobbying the incoming members of the Trump administration and Congress to delay or decrease it.
"How the Trump administration views the Superfund is unknown at this point," said Fish, noting the president-elect will name a new EPA administrator.
At this point, agreeing to pay a share of the cleanup cost is voluntary. The EPA may even offer incentives in the future to encourage participation. But the federal agency has enforcement powers it also can use to force compliance. As a last resort, the EPA can fund the work itself, then go to court seeking three times the amount from those who did not pay.
EPA to make formal requests soon
The Portland Harbor Superfund site is a 10-mile stretch of the Willamette River from the southern end of Sauvie Island to just north of the Steel Bridge. The location has been the site of much of the region's industrial work for over 100 years. It also is culturally significant to six Native American tribes. The EPA designated it as a Superfund site in 2000 after a joint EPA-DEQ study showed river sediments there are contaminated with such pollutants as DDT and other pesticides, polychlorinated biphenyls (PCBs), and petroleum.
The EPA notified all of the Potentially Responsible Parties (PRPs) of their potential liabilities in a series of letters over the past decade. The EPA now will mail them again, officially telling them of the final cleanup plan and asking them to say how they will participate. The letters are expected to go out in coming weeks. Responses will be requested within 90 days.
The letter from Whitman and Minor said the state expects the cleanup work in the harbor will be divided into "work areas," some of which will be overseen by the DEQ. Kevin Parrett, manager of the agency's Northwest Region Cleanup Program, hopes the first include "hot spots" where the public is most likely to come into contact with the pollution. They include a swath near Cathedral Park in St. Johns and the nearby Willamette Cove, where a colony of homeless people are living on boats and probably catching fish in the river.
"It's unlikely any party will sign up to do everything," Parrett said.
In addition to Oregon and Portland, early participants are expected to include at least some of the 12 private members of the former Lower Willamette Group, a group of governments and businesses formed in 2001 in agreement with the EPA to conduct and support the remedial investigation and feasibility studies necessary for cleanup of the site.
The group disbanded late last year after spending more than $115 million on technical studies and other costs. Major companies included NW Natural, Gunderson LLC, Exxon, Kinder Morgan Liquids Terminals, and the Union Pacific and BNSF railroad companies. Some could challenge it in Washington D.C., however.
Cleanup just one of many costs
But cleaning up the pollution is only part of the plan. According to Parrett, the EPA and DEQ already are talking about creating a long-term monitoring plan to ensure the work is effective. It will include periodic sampling of water, sediment and tissues of fish caught in the river. The PRPs are expected to pay for that, too.
And some of the work will take place outside the harbor itself. The letter from Whitman and Brown says the EPA and DEQ are committed to "developing a comprehensive strategy for identifying and addressing additional sources of toxins within the Willamette River watershed, upstream of the Harbor. This approach is intended to build upon existing, ongoing efforts to achieve broader environmental improvements beyond the scope of actions specified in the ROD."
In addition, a separate process is underway to identify and fund projects to mitigate the damages caused to the natural resources in the harbor by the pollution. Although it has not yet received much attention, restoration work ordered by the Portland Harbor Natural Resource Trustee Council will be paid on top of the costs of the EPA's cleanup plan.
The council represents government natural resources agencies and Native American tribes. The cost of its plan is on top of the EPA's $1.05 billion cleanup plan.
The council currently is in negotiations with those PRPs identified as causing the pollution. Like the EPA, the council also has the power to enforce compliance through the courts, but hopes for voluntary commitments from them.
"We hope everyone will agree to cooperate. The public's interest in the river has been hurt. It's the EPA's job to clean it up, and our job to seek compensation and mitigate the damages," Portland attorney Julie Weis, who chairs the council and represents the Siletz Tribe on it, told the Portland Tribune before the final cleanup plan was released.
Congressional delegation cautious
Spokesmen for Sen. Jeff Merkley, D-Portland, did not respond to requests for the senator's reaction to the EPA plan. He's probably the most environmentally friendly member of the delegation.
Nor did the spokesman for Rep. Greg Walden, R-Hood River, now the most powerful member of the delegation because of his post in House leadership.
Hank Stern, spokesman for Sen. Ron Wyden, D-Portland, issued a noncommittal two-sentence written statement, saying he's still evaluating the plan but will make it a top priority.
Rep. Earl Blumenauer, D-Portland, said last Thursday that he's been unable to get a briefing from EPA to answer his questions, and he's still "kind of baffled." Blumenauer said he's highly concerned that the start of the cleanup may be extended by several years, as everyone "lawyers up" and turns into a "knife fight" with everyone shifts from negotiation to litigation. That's the same point made by business leaders who hope to get a lower price tag.
"We know the national administrator (Pruitt) is somebody who doesn't like the EPA and has been suing it," he said.
Blumenauer, like the Port and business groups, is also concerned that the $1.05 billion cleanup price tag will get much steeper.
Dennis McLerran, the outgoing regional EPA administrator from the Obama Administration, said he's very confident the agency's estimate is on the mark, based on past Superfund cleanups. Blumenauer was skeptical, saying costs historically have doubled or tripled in other Superfund cleanups.
Whether it's a $1 billion plan or a $2 billion plan, Blumenauer said, Oregon's Congressional delegation will have to see how far the Trump Administration is willing to go.
The EPA received 5,300 public comments about the draft plan, and some 90 percent of those urged it to adopt a more rigorous plan, which it did.
The new plan is estimated to cost $1.05 billion and take 13 years. EPA says that would require the removal of 3 million cubic yards of contaminated sediment from the river, much of it from dredging 248 acres of river bottom.
To learn more
• Record of Decision can be found at: tinyurl.com/gnqzd2l
• Portland Tribune story on release of the EPA plan: