May 1, 2008

Superfund Enforcement


By Chris Reive

Spring 2008

More than 200 businesses, many with local connections, recently received three separate letters from three arms of the federal government, beginning with the Environmental Protection Agency (EPA). Each letter declared that the recipient was either responsible for or had information related to a significant environmental problem that has been brewing in the Willamette River for many years. Many of the recipients were surprised by the notices, and local businesses planning to acquire, develop or redevelop waterfront property should be aware of the risks such projects create and of the solutions available to them.

A federal enforcement process under Superfund not often seen in our area has begun. While the process focuses on our neighbors in Portland and on the Willamette River, its applicability to SW Washington is obvious. EPA's Region 10 is based in Seattle and covers our area. At least one major source of contamination in the Willamette was shipbuilding and ship deconstruction during the WWII era, which was also a major local industry. And, local interest in redeveloping the former Boise Cascade and Vanalco sites presents similar issues related to the responsibility for historical contamination.

Superfund enforcement is draconian and expensive. Liability for past contamination is often not based on fault, and even if you can reasonably argue that you are not responsible for the problem, the cost of your proof can be stunning.

The first of the government's three letters came in late December of last year. David Batson, an employee of the EPA, sent letters to a large group of mostly local businesses and individuals, informing them that they were each likely to be held responsible for contamination of a large portion of the Willamette River. Mr. Batson, a self-described "convener," then extended his invitation to meet in February to begin a process that eventually should result in allocating the substantial cost of the ongoing investigation and the final cleanup related to that contamination. The total investigation cost to date exceeds $55 Million. The final cleanup cost is unknown, but will be substantially more. All of these costs need to be allocated and payment responsibilities assigned.

A second letter followed in early January. It came from a lawyer declaring that he represented a group of federally designated "Natural Resource Trustees" charged with assessing and valuing the injury to natural resource assets impacted by contamination in that same stretch of the Willamette River. Like Mr. Batson, the author invited his audience to get involved. The eventual price tag, while separate and different from the costs described in the first invitation, is also likely to be very large.

Then, in mid-January, a third letter was issued. No longer characterized as an invitation, this letter came directly from the Seattle office of the EPA. It formally requested each business to provide very specific information about its use and disposal of chemicals, its history of activity on its property, a description of any past releases of contaminants, and other information the EPA declared to be relevant in its search for parties responsible for contamination of the Willamette River. Although labeled a request, the EPA clearly described the force of law behind the inquiry. A failure to respond fully and completely to the attached 82 questions could be punished by fines of up to $32,500 per day.

Whether described as invitation, request, or demand, of all of this begins the federal process known as "Superfund enforcement." This is a new experience for most of our local businesses because it has never been used in our area on such a scale. While it may present a 'first' for some of our local businesses and our neighbors, it is not likely to be the last time we will see such an approach to solving the problems posed by historical contamination.

EPA has posted the list of companies that received the information request at

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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