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Science, Law & the Environment Emerging Topics in Environmental Law

Duwamish River Superfund Update

Posted in Cleanup & Superfund, Emerging Policy, Environmental Risk, Public Health Policy

I’ve blogged before on various aspects of the Duwamish Superfund site process, which began in 2001 with the lower 5 miles of the Duwamish River being listed as a federal Superfund site. The last decade has seen a massive study of the river and scoping of cleanup options by the Lower Duwamish Waterway Group, (“LDWG”), consisting of the Port of Seattle, King County, the City of Seattle and Boeing. This characterization effort led to the Remedial Investigation for the site (finalized in July 2010), a report better measured in megabytes rather than pages, and a yet-to-be finalized Feasibility Study, also massive in scope. Still to come is a draft of the “Proposed Plan” for the site–likely in early 2013–and then a Record of Decision (“ROD”) selecting the remedy, likely in 2014.

The cleanup options being considered are in the $300 million range, although that number could go up based on decisions still to be made by EPA. So far, the four LDWG parties have been funding investigation of the river (including the RI and the FS), but it is likely that many other parties will be involved in funding the cleanup as CERCLA’s net is cast broadly across the lower Duwamish valley. This process will begin soon–with EPA issuing General Notice Letters (“GNL”) to parties it views as responsible for the cleanup. These parties will likely be a subset of the more than 260 Section 104(e) Information Request recipients for the site. (Update (10/25/2012): Word is that EPA originally planned on sending the latest round of general notice letters in October, but those letters have been delayed. Now, EPA anticipates it will be sending the latest round of GNLs in November).  The cost recovery/allocation phase of the cleanup for the Duwamish may be its most active phase yet, because EPA will need some understanding of where the $300 million plus for the remedy will come from prior to issuing a ROD.

This cleanup already has shaped the landscape of environmental law in Seattle over the past decade, and has even resulted in some actual in-water cleanup in the form of Early Action Areas in the river, such as Boeing’s Plant 2, Slip 4, Terminal 117, and other sites. Now, society needs to figure out how to pay for the cleanup. The money from the cleanup will come from many sources. Typically, insurance plays a large role in funding these cleanups–as CGL policies that predate the enactment of CERCLA did not exclude coverage for pollution. However, I say that “society” needs to figure out how to pay for this cleanup on purpose because it is quite likely that taxpayers will pay for the large portion of the cleanup not covered by old insurance policies cleanup, either because three of the four LDWG parties are municipalities, or through taxes like the Hazardous Substance tax.

That portion of the cleanup not funded by old insurance policies or directly through taxes is still indirectly funded by society because of the potential impact CERCLA liability can have on small-to-medium-sized businesses that are caught up in these types of mega-sites. This is a particularly acute problem where the cleanup costs are measured in nine figures, as will be the case for the Duwamish, and is particularly relevant as our economy works to recover from the recession. My sense is that this point is being lost in the dialogue involving the Duwamish cleanup process, and my hope is that the agencies and elected officials think carefully about balancing the need for remediation of the Duwamish with the needs of our local and regional economy. Many decisions regarding this trade-off will occur over the next year, first through the public comment process on the Proposed Plan, and then second, by EPA as it incorporates public feedback on Proposed Plan into its ROD for the site. Stay tuned . . .