This article originally published in the February 25, 2022 edition of Daily Journal Commerce Oregon.
The Superfund cleanup of Portland Harbor is still years from completion. With the project only in the remedial design phase, the full extent of the specific actions that will be required along the designated 10-mile stretch of the lower Willamette River remains to be seen.
But does that mean the brownfield sites near or associated with the Portland Harbor Superfund Site must also wait years before redevelopment? Must the redevelopment of what once was prosperous industrial land be delayed and prolonged until completion of the cleanup?
The answer to these questions for now seems to be “yes.” Yet, from my perspective, the answer could be “no.” With some increased willingness and flexibility by federal and state regulators in dealing with third-party developers, Portland Harbor could become a shining, national example of how a city can overcome the environmental damage caused by industrial activities of the past.
Uncertainty is one factor that could be keeping potential developers at bay. Under hazardous waste cleanup laws, the act of knowingly buying a contaminated piece of property can expose the buyer to potential cleanup liability, even though that buyer had nothing to do with the contamination. Cost estimates for the entire Portland Harbor cleanup are wide ranging, but virtually all are well over a billion dollars. Even breaking that down into smaller, discrete areas, many of these areas alone have remedial estimates in the hundreds of millions of dollars.
With the magnitude of future liability so large, and no guarantees from the EPA and Oregon Department of Environmental Quality (DEQ) on exactly how high remediation costs may go, the risk of “buying the liability” may simply be too great for many would-be developers.
The remediation process – as has been borne out at the Portland Harbor – can be long and complicated. Since the site was listed on the federal Superfund List in 2000, the Portland Harbor has gone through a remedial investigation that evaluated and delineated the full nature and extent of the contamination. Questions addressed during this stage included how deep is the contamination? Is groundwater affected? What are the contaminants that pose the most risk to human health and the environment?
Once that investigation was complete, a feasibility study was performed, which included an evaluation of protective and cost-effective remedial options that must be completed. The EPA then selected the preferred remedy – allowing remedial design work to begin to determine what specific actions must be done to implement the selected remedy. This process also takes several years.
While each step of this process helps to refine the potential remediation costs, it will only be after completion of the remedial design that the “true costs” of the remedy can be most accurately estimated.
It is this cost and regulatory uncertainty that hangs over Portland Harbor and prospective third-party developers. Both EPA and DEQ have demonstrated they want to move the cleanup forward, but it is unclear how they will react to, and what level of cleanup costs they would seek to impose on, potential developers wishing to redevelop a brownfield site within the Portland Harbor Superfund Site.
Yet doing nothing is not necessarily in the best interests of the agencies and certainly not in the best interests of the City of Portland, which could otherwise benefit from earlier redevelopment of contaminated and blighted properties. It’s time for EPA and DEQ to be more proactive and bolder regarding these brownfields.
There are well established brownfield cleanup programs within the agencies, and they have the legal ability to provide a good deal of protection to those willing to accept some degree of risk to redevelop these contaminated properties. For example, EPA and DEQ can more proactively consider providing liability releases and protection for developers through the use of prospective purchaser agreements (PPA), or greater assurances against enforcement actions through the issuance of No-Further Action letters. DEQ’s willingness to enter into a PPA regarding the former Time Oil property last year, a property within the Portland Harbor Superfund Site, is an encouraging sign.
In exchange for these protections, the potential developer will agree to perform a discrete component of remedial work, or they could agree to provide funding for the same. EPA and DEQ being more proactive in this regard, which would require dedicating additional resources to move such agreements to conclusion, would allow them to coordinate the restoration of these brownfields with the larger remedial work to be done to the harbor, adding even more certainty of success to the redevelopment of property.
Such a “program” could start with upland parcels which likely pose significantly less risk than a parcel immediately adjacent to the river. EPA and DEQ can work with developers to make sure these brownfields no longer contribute to contamination (if they ever did), that stormwater runoff is adequately and appropriately controlled, and that any new development would be done in a manner to eliminate future releases of hazardous substances into the Willamette River.
The sooner third-party developers can have some certainty on their liability and costs, the sooner they can sit down and calculate the full development costs associated with buying a brownfield property.
Imagine a Portland Harbor alive with redevelopment. Imagine what that would mean for a city that has endured several years of seeing its downtown core greatly diminished. Imagine a big, beautiful river running past what today is blighted land but tomorrow could be usable, attractive, in-demand property.
With a more proactive stance and flexibility from regulators, and collaboration between developers and other government entities, there is no reason brownfield redevelopment within the Portland Harbor cannot begin to happen now, rather than waiting years for the cleanup work to be completed. This would be beneficial to not only Portland but the region as a whole.
David Rabbino is a shareholder and environmental lawyer at Jordan Ramis PC. A former enforcement attorney for the U.S. EPA, he represents clients in some of the largest Superfund sites across the nation.