Contaminated sediment sites are a lightning rod for lengthy investigation and expensive remediation. Based on the size and scope of these sites, they are ripe for litigation with multiparty involvement. This article summarizes the procedural status of a number of important sediment sites around the country.
Lower Duwamish
Flowing through an industrial corridor south of Seattle, the lower five miles of the Duwamish River (Lower Duwamish) were designated a federal Superfund site and listed on the National Priorities List by the United States Environmental Protection Agency (EPA) in September 2001. The Lower Duwamish was also listed by the Washington Department of Ecology as a cleanup site under Washington’s Model Toxics Control Act in 2002. The listing was based on the presence of volatile organic compound (VOC) plumes, polychlorinated biphenyls (PCBs), polycyclic aromatic hydrocarbons (cPAHs), arsenic, and other metals in the Lower Duwamish.
Subsequently, the EPA and the Washington Department of Ecology entered into a memorandum of understanding identifying the EPA as the lead agency for in-waterway cleanup actions and the Washington Department of Ecology as the lead agency for upland pollution source control. After nine years of monitoring and testing, the Remedial Investigation Report was issued in 2010, followed by the release of the feasibility study in 2012. In 2013, the EPA released its proposed cleanup plan, which received more than 2,300 public comments. Finally, in December 2014, the EPA released its record of decision (ROD) identifying in detail the cleanup plan for the Lower Duwamish.
Subsequently, the EPA and the Washington Department of Ecology entered into a memorandum of understanding identifying the EPA as the lead agency for in-waterway cleanup actions and the Washington Department of Ecology as the lead agency for upland pollution source control. After nine years of monitoring and testing, the Remedial Investigation Report was issued in 2010, followed by the release of the feasibility study in 2012. In 2013, the EPA released its proposed cleanup plan, which received more than 2,300 public comments. Finally, in December 2014, the EPA released its record of decision (ROD) identifying in detail the cleanup plan for the Lower Duwamish.
The ROD outlines a plan that is expected to cost $342,000,000 and that, combined with upland pollution source control activities, will result in the removal of 90 percent of the pollution found in the Lower Duwamish. Specifically, the ROD calls for the following remediation activities to accomplish this goal:
- active remediation on 177 acres of the 441-acre Superfund site;
- 105 acres of dredging leading to the removal of approximately 960,000 cubic yards of material;
- 24 acres of sediment caps to be placed throughout the Lower Duwamish where there exists sufficient depth for a cap;
- 48 acres of enhanced natural recovery through the placement of six to nine inches of clean material (sand) on the sediment; and
- 235 acres of monitored natural recovery whereby contamination levels are expected to be reduced over time through the migration of cleaner upstream sediment.
The Lower Duwamish Waterway Group—consisting of the City of Seattle, King County, the Port of Seattle, and Boeing—entered into an administrative consent order with the EPA and the Washington Department of Ecology in December 2000 and will be the primary entities responsible for implementing the cleanup.
Currently, there is no pending litigation regarding the Lower Duwamish cleanup. Cleanup actions identified in the EPA’s ROD are expected to commence in the near future and are expected to last until 2030.