Lawsuit Aimed At Prompting More Participation In Portland Harbor Superfund Site

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On April 23rd ten public agencies and businesses involved in the Portland Harbor Superfund cleanup filed suit naming sixty plus additional companies to share responsibility for the costs of the superfund investigation and cleanup.  This suit is directed at those companies that are not already participating in sharing the costs, in order to prod them to participate in a negotiated agreement for cost sharing.
Copied below is the Press Release from the plaintiffs regarding this lawsuit.
April 24, 2009
Barbara Smith
(206) 343-0250
(206) 605-3392

(Portland) --- Ten of the public agencies and businesses involved in funding the remedial investigation and feasibility study of the Portland Harbor Superfund Site have taken legal steps to ensure other potentially responsible parties are required to pay their fair share of investigation and cleanup costs.
The lawsuit was filed Thursday April 23, 2009 in U.S. District Court-Oregon. The ten parties are: Arkema Inc., Chevron U.S.A. Inc., City of Portland, ConocoPhillips Company, Gunderson LLC, NW Natural, Evraz Inc. NA, dba Evraz Oregon Steel, Port of Portland, TOC Holdings Co. and Union Pacific Railroad Company.
These ten parties have footed most of the $70 million for costs associated with the project since 2001 and it’s time for others to participate.
This is not an action by the Lower Willamette Group. It is brought by the ten signatories to an Administrative Settlement Agreement and Order on Consent with EPA – the legal document on which the investigation is based. In addition, there are other non-AOC members of the LWG who are not parties to the lawsuit. The investigation work at the site continues and is not affected by the lawsuit in any way.
All of the defendants named in the lawsuit have been asked to participate in a settlement process, but a potential federal statute of limitations deadline has prompted these ten plaintiffs to take action now to protect their rights to recover past and future costs.
The good news is that in the past few months, more than 100 parties have come forward to participate in a non-judicial settlement process or have signed tolling agreements with the plaintiffs. (A tolling agreement is an agreement to waive a right to claim that litigation should be dismissed due to the expiration of a statute of limitations.) However, there remain a substantial number of parties who the plaintiffs believe have responsibility but who have not signed agreements to participate in the settlement process. The defendants will be given an additional opportunity to choose the settlement process over litigation.
Claims against recalcitrant parties are based on research of historical documents about over water and near shore activities, and any other ongoing or historical releases to the river.
The federal Superfund law is clear that liability for past practices doesn’t go away just because properties or businesses have changed hands.
The investigation phase of the project is nearing completion and it is important as we get closer to final decisions – made by EPA based on public input – that we have the parties with potential liability working on solutions to pay their fair share.
Allocating liability is a long and complex process and starting this process now will help ensure a more timely, efficient, cost effective and long-lasting river cleanup.
EPA is not involved in the voluntary non-judicial settlement process. At this point, it is up to the parties to come together to resolve liability before EPA’s final cleanup decisions.