A tug of war over one of the country’s most toxic sites is pitting the EPA against a handful of companies paying for cleanup.
The companies have sought to reduce the scale and cost of the cleanup at Portland Harbor, a key international shipping port in Oregon, claiming hardship due to the coronavirus pandemic. But the Environmental Protection Agency earlier this month denied their request.
Both sides claim the other is unnecessarily slowing the cleanup process at the harbor. It has been a Superfund site for two decades, and has spent about three years on EPA Administrator Andrew Wheeler’s priority list. But cleanup has yet to begin.
About 100 companies are potentially liable for remediation at the site. Some, including General Electric Co., Shell Oil Co., Arkema Inc., and Bayer Crop Science Inc., signed agreements with the EPA in March to start designing restoration of sections of the harbor.
But the lengthy negotiation period for a handful of other companies means some contamination has yet to be addressed.
Members of Oregon’s congressional delegation have long been itching for the work to start.
“Every year the Portland Harbor goes without cleanup action, our region loses opportunities in the form of tax revenue, jobs, and property value, impeding economic opportunities for this important 11-mile stretch of industrial waterfront land within the City of Portland,” the seven lawmakers said in an October 2017 letter to the EPA.
Complications in Portland Harbor’s cleanup could be an indicator of the future of the 40-year-old Superfund program, said Carolyn McIntosh, partner at Squire Patton Boggs LLP in Denver, Colo.
“The larger, more complex sites now tend to be the ones that still remain within the program,” she said. “These issues are not going to get easier as EPA moves forward, trying to remediate them.”
One complication is local involvement.
As the current administration pushes for faster cleanup, tribal and local government representatives have been cut out of the conversation with EPA and the potentially responsible parties, said Laura Shira, environmental engineer at Yakama Nation Fisheries, a program of the Confederated Tribes and Bands of the Yakama Nation.
“We were a member at the table,” she said. “That’s all—or for the most part—been cut out.”
They’re On the List
The EPA’s National Priorities List includes Portland Harbor and other sites, such as the Gowanus Canal in New York and San Jacinto River Waste Pits in Houston, that are the most contaminated in the country. The EPA oversees the cleanup process, including investigating the contamination, choosing a remedy, and ensuring that remedy protects human health and the environment.
The agency is “encouraged by the progress made so far” with Portland Harbor’s cleanup, an agency spokesperson said May 11.
But a handful of companies working on the site have been “banging the drum” to scale back the EPA’s cleanup plan for some time, said Channing Martin, chair of the environment and natural resources group at Williams Mullen in Richmond, Va.
Portland Harbor has been on the administrator’s priority list for about three years, since Scott Pruitt headed the agency. Wheeler’s goal for the site—which doesn’t have a deadline or time frame—is to move quickly toward a settlement and get started on cleanup.
Schnitzer Steel Industries Inc. and Evraz Inc., two companies working on cleanup at the harbor, said that because of the coronavirus pandemic, they would need more time to sign off on a remediation design agreement with the EPA. Both companies also petitioned the agency for changes to the site remediation plan, which would reduce the cost and time needed for cleanup.
The EPA in a March 26 enforcement order denied the extension, and on May 4, also denied the companies’ request for changes.
The companies didn’t show they need to significantly alter the site’s cleanup plan, wrote Chris Hladick, EPA’s Region 10 administrator, who oversees the Pacific Northwest. Wheeler asked Hladick to respond on his behalf, according to the letter.
Schnitzer Steel “will continue to seek ways to positively impact the Portland Harbor site-wide cleanup and reduce the remedy’s cost burden on Oregon’s economy and its severe, detrimental impacts to the river that will be caused by dredging,” a spokeswoman said in a statement. Evraz declined to comment.
Gunderson LLC and Vigor Industrial LLC were also part of the petition, sent to Wheeler in March, to change the cleanup plan at Portland Harbor. Neither responded to requests for comment.
A Century of Shipping
Portland’s century-long history of shipping and industrial and commercial activity left a toxic soup behind, contaminating the Willamette River’s water and sediment with pesticides, petroleum, and other chemicals. The EPA designated a 10-mile stretch of the Willamette River the Portland Harbor Superfund site in 2000.
Cleanup costs could be up to $3 billion, Schnitzer Steel and others claim, while the EPA’s estimate is about $1 billion.
The latest scuffle is part of several years of disagreements among the EPA and some of the companies, including over how much the site has already improved. The companies also want to dredge less contaminated sediment from the Willamette River.
Shira, from the Yakama Nation Fisheries, said she is relieved the EPA opted for enforcement orders. But she has “serious concerns” about how the cleanup has progressed since 2017.
The Yakama Nation has pushed for the harbor’s cleanup since at least 1998, when it lobbied for the site to receive Superfund status.
Possible Judicial Review
The administrator’s priority list was created as part of larger Superfund reform efforts, which Pruitt started in 2017 and Wheeler has continued. About 20 sites out of more than 1,300 around the country are part of the priority list, though the number has fluctuated.
The companies that signed the petition at Portland Harbor argued the chosen remedy for the site was “arbitrary and capricious.” That wording presents a specific standard for a court to determine whether an agency’s decision is valid.
If a court agrees the EPA’s chosen remedy is “arbitrary and capricious,” that remedy could be reversed, said Michael Blumenthal, attorney at McGlinchey Stafford PLLC in Cleveland.
But, “winning an arbitrary and capricious standard argument against EPA is extremely difficult,” McIntosh, from Squire Patton Boggs, said.
The administrator’s focus on the site and push for progress makes it even harder, Williams Mullen’s Martin said.
“That is a tough thing to do when it’s on the administrator’s list and the administrator wants to get something done,” he said.
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