Portland Harbor Superfund Site

Overview of Statutes CERCLA - Federal law –Provides EPA with authority for clean up –Provides for liability, compensation, cleanup and emergency response for hazardous substances –Retroactive and strict liability, joint and several –42 USC §9601 (1980) ORS Chapter 465 and 466 – State law –Addresses hazardous waste and materials and removal/remedial action costs incurred –Strict liability, joint and several –Parties can pursue state agencies for costs incurred to remediate and for damages to natural resources –State agencies can pursue private parties for reimbursement of costs

Background May 1997 – EPA and DEQ river sediment study March 1998 – Completed study found contaminated sediments Contaminants – PCBs, PAHs, pesticides, metals, dioxin, phthalates Nov – 10 parties formed Portland Harbor Group June 1999 – Portland Harbor Group Management Plan completed

Background Dec – Portland Harbor listed on NPL 2000 – EPA sends General Notice Letters to 69 parties 2001 – Lower Willamette Group formed and AOC signed between LWG and EPA – Sampling occurred 26 discrete areas of contamination identified (AOPC) 2008 – EPA sent 104(e) letters

Oregon DEQ DEQ enforces Oregon’s clean-up laws DEQ entered into Consent Judgment with PRPs in Nov Defendants reserved their cost recovery and contribution rights against all other agencies of the state.

Anticipated Schedule August 2011– Revised Remedial Investigation (RI) November Finalize Feasibility Study (FS) Mid 2013 early 2014 – Record of Decision (ROD)

After ROD Issued, EPA has the authority to: Create a Remedial Design that includes engineering plans and specs to conduct clean up Construct and implement the clean up Monitor the Site after clean up

What May Need to be Remedied 3.Depositional area 1.Navigation channel 4.Upland source soil 5.Surface water discharge 2.Near Shore contamination 6.Damaged natural resources

“Pool” of Potentially Liable Parties Individuals and/or entities that: Have operated near the waterfront, and whose contamination has run into the Willamette River Have “released” contaminants in sanitary or storm sewage except under conditions where the release was subject to (and not in violation of) a “federal permit” Have transported contaminants that reached the river.

ODOT and the Portland Harbor Superfund Site ODOT was singled out as a potentially liable contributor by other parties, based upon its stormwater discharge. LWG sent ODOT Tolling Agreement under threat of lawsuit and ODOT signed in Nov The Agreement Allows ODOT and other PRPs to negotiate potential contributions to investigation and clean up costs without filing lawsuits ODOT is a participant in a confidential alternative dispute resolution process for the remediation process.

ODOT and the Portland Harbor Superfund Site In Jan EPA mailed CERCLA 104(e) information requests to ~280 entities ODOT received a 104(e) letter ODOT filed response in Aug and provided: As Built plans ROW Files and Maps Maintenance Files and Permits Material data sheets Lease and Property Management Information Environmental Permits and Reports HazMat Info Drainage Studies and Reports

ODOT and the Portland Harbor Superfund Site In February, 2011 ODOT received a General Notice Letter from the EPA. The NW Nicolai and Hwy 30 interchange and the St. Johns Bridge were noted as areas of concern.

Natural Resource Damage (NRD) Restoration process overseen by trustees: ODFW, NMFS, USFWS, and Tribes Assert claim arising from injuries to resources belonging to, managed by, and held in trust/controlled by the trustees ODOT participated in Phases I and is currently participating in Phase II of the NRD process ODOT is also participating in a mediation to resolve liability among a number of NRD RPs. This NRD process in Portland Harbor is somewhat unusual because it is proceeding at the same time as the remediation process.

DEQ and Source Control DEQ focusing source control efforts on: –High priority sites –Stormwater DEQ reviewing results of Downtown Portland Sediment Characterization to assess –Area-wide sediment contamination –Potential threat of recontamination by downtown reach DEQ to develop a strategy to treat and remove hot spots

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