Several of the busiest commercial waterways in the United States are Superfund sediment sites that will cost up to a $1 billion or more, each, to clean up. At least one case has found that a ship crossing one of those harbors whose propeller stirs up contaminated sediment may create liability to the ship’s owner or operator for preexisting contamination. Recent emphasis on sediment sites (such as the $1.7 billion Portland Harbor Record of Decision, see https://www3.epa.gov/region10/pdf/ph/sitewide/record-of-decision-jan2017.pdf) has caused renewed attention on this creative theory of liability. The theory could be raised in litigation or in potentially responsible party (PRP) allocation. Absent protection of commercial shipping activity by the U.S. Environmental Protection Agency (EPA) and local port authorities, ship owners and operators have reason to be very concerned. If that liability analysis becomes widely applied, it could drive navigation and jobs away from those crucial commercial waterways.
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