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Science, Law & the Environment Emerging Topics in Environmental Law

New Bedford Harbor Superfund: “Eye-Popping” Cost Reopener and Implications for the Duwamish and Portland Harbor

Posted in Cleanup & Superfund, Emerging Policy

If you missed the update from Robert Sanoff over at Foley Hoag’s Law and the Environment Blog, on the New Bedford cost reopener leading to a $366 million settlement, it is worth the read simply because Mr. Sanoff gets points for incorporating a Godfather line and clip (even if it was the third Godfather movie).

In a nutshell, one of the potentially responsible parties for the New Bedford Superfund site (AVX) settled its liability with EPA in 1992 for $66 million. Twenty years later, the chosen remedies at the site have failed, and a decision was made to dredge almost a million cubic yards of sediments at a cost of $1.2 billion over the next 40 years. It sounds like AVX fell on its sword and settled for about a quarter of the total estimated costs. Both the costs and the settlement are indeed “eye popping,” as Mr. Sanoff puts it.

If this all sounds familiar to Superfund practitioners in the Pacific Northwest, it should. The “Big Dig” for the Duwamish (Alternative 6 in the draft Feasibility Study) is similar in cost and time frame. A similar “big dig” type alternative is being evaluated for Portland Harbor. Although Alternative 6 isn’t currently being contemplated for the Duwamish, an “adaptive management” approach is being contemplated, where various remedial technologies are being applied over time, with monitoring in the interim to measure performance. That “adaptive management” approach is similar to the remedial actions taken at New Bedford over the past 20 years. So, even though these big dig remedies are likely to not be selected for the Duwamish and Portland Harbor, the lesson of New Bedford is that the failure of less impactful and less expensive selected remedies can result in a big-dig type remedy as a backup.

Hopefully, the mistakes in implementation of remedies over that past 20 years at New Bedford Harbor are not repeated at the Duwamish and at Portland Harbor, and we don’t go down a 20 year implementation path that leads to EPA throwing its hands up and implementing a big dig. But, hope isn’t something to hang your hat on when dealing with sites of this magnitude– and the threat of a New Bedford-type reopener certainly should be on the minds of those parties working to resolve liability for the Duwamish and Portland Harbor. We’ll see if this settlement back east ends up influencing these two sites on the other coast.