The Portland Harbor Superfund Site Study Area is a ten-mile stretch of the Willamette River located just downstream from Portland, Oregon. According to the recently released draft remedial investigation report, polychlorinated biphenyls (PCBs) account for most of the estimated human health and ecological risks at the site, with dioxins/furans, polycylic aromatic hydrocarbons (PAHs), and dichlorodiphenyltrichloroethane (DDT) playing a lesser role. Public entities, including the City of Portland, the Port of Portland, and federal defense agencies, have played an active role at the site and are significant potentially responsible parties (PRPs).
As I gathered information on remedial actions and costs from sediment sites around the country to try to understand the magnitude of possible remedial actions at Portland Harbor, I noted the degree of PCB contamination and the cleanup levels at the other sites. I was surprised to learn that the pre-cleanup average sediment PCB concentrations at Portland Harbor are lower than the target cleanup levels at the other sediment sites. In other words, the performing parties at other sites are striving to reach cleanup levels that leave their sites dirtier than Portland Harbor is before cleanup even begins.
For example, at the Lower Fox River in Wisconsin, the remedial action level for PCBs is 1,000 parts per billion (ppb) and the surface-weighted average concentration (SWAC) goal ranges from 250 to 280 ppb. The SWAC for PCBs in sediments at Portland Harbor is just 85 ppb, and the median value is a mere 19.5 ppb. At the Hudson River in New York, the cleanup goal is 1,000 ppb and allowances are made for isolated areas of contamination to remain that are as high as 27,000 ppb. By contrast, and again before cleanup has even started, 95 percent of the samples taken at Portland Harbor are below 553 ppb and the highest recorded value in the entire study area was 33,000 ppb. Why should Portland Harbor PRPs spend millions of dollars to help clean up a river that is already cleaner than target cleanup levels at other sites?
At least part of the answer is that cleanup levels are not based solely on risks to human health and the environment. While Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cleanup levels are generally supposed to be based on such risks, the U.S. Environmental Protection Agency (EPA) does not normally require cleanup beyond background concentrations. Thus, cleanup standards at sediment sites can vary widely depending on how clean or dirty the rest of the river is, leading to a potential misallocation of scarce cleanup dollars. PRPs in Region 10 spend enormous sums to make relatively clean rivers a bit cleaner when a lesser amount of money could produce greater public health and environmental benefits at dirtier sites.
Examining the lower eight miles of the Lower Passaic River at the Diamond Alkali Superfund Site in New Jersey illustrates how background concentrations affect cleanup levels. Before cleanup levels for this stretch of the river were selected, studies were conducted to estimate site risk drivers and PCB cleanup levels that would be protective of human health and the environment. The human health risk assessment was primarily based on adult fish consumption and resulted in risk-based preliminary remediation goals (PRGs) ranging from 1.03 to 103 ppb, with the range based on varying degrees of residual risk. For instance, if the sediment cleanup level was 1.03 ppb, the residual excess lifetime cancer risk would be one in one million. If the cleanup level was 103 ppb, the risk would be one in ten thousand.
It is here that dueling EPA policies collided. On one hand, EPA usually attempts to set a cleanup goal at the excess risk level of one in one million but will compromise down to a risk level of one in ten thousand under certain circumstances. On the other hand, the CERCLA program does not normally set cleanup levels below natural or anthropogenic background concentrations. The reasons not to clean up below background include cost-effectiveness, technical practicability, and the potential for recontamination. For the lower eight miles of the Passaic, the policy on background concentrations prevailed, and the PRG for PCBs was set at the estimated background level of 650 ppb, far higher than the risk-based PRGs of 1.03 to 103 ppb.
Remedial action must still occur because the PCB levels at the Passaic site are much higher than 650 ppb. If the Portland Harbor Superfund site were located on the Passaic, however, no remedial action would likely be required because average PCB concentrations at Portland Harbor are much lower than the background levels on the Passaic. Unfortunately for the PRPs at Portland Harbor, not only is their Superfund site relatively clean, but the Willamette River is pristine compared to other industrial rivers around the country, such as the Hudson, Passaic, and Lower Fox. Instead of having a cleanup goal of 650 ppb as at the Passaic, or of 1,000 ppb as at the Hudson, the Portland Harbor PRPs may be required to clean up to just 17–26 ppb, which is the current range of estimated background PCB concentrations on the Willamette. It seems inequitable that the Portland Harbor PRPs, many of which are public entities, may be required to spend more than General Electric Company (GE) will spend at the Hudson, simply because GE discharged PCBs into a dirtier river.
It is difficult for the Portland Harbor PRPs to entertain a clean-up goal of 17–26 ppb when other PRP groups are allowed to leave their sites dirtier than the Willamette River is before cleanup even begins. Some wonder why it is even a Superfund site. There is no obvious solution to this conundrum. EPA's reasons for not cleaning up below background are sound. It makes no sense to clean up to 10.3 ppb if upstream sediments are at 650 ppb. Millions would be spent with the benefits lost over time as the clean areas are recontaminated with dirty sediment. And if there really is unacceptable risk to public health and the environment at Portland Harbor at concentrations below 17–26 ppb, we do not necessarily want to set the cleanup level at 650 ppb or 1,000 ppb just because those levels were used at other rivers. After all, we want to end up with more clean rivers and not more rivers like the Hudson, the Fox, and the Passaic.
It does appear, however, that as a society we are not properly allocating scarce cleanup dollars. Over $70 million has already been spent on the remedial investigation at Portland Harbor. Does it really make sense to spend hundreds of millions of dollars (or more) at Portland Harbor for remedial actions to ensure that a person can eat twenty-three 8-ounce helpings of raw and uncleaned fish (including the entrails) per month when citizens along the Passaic will not be able to enjoy even one meal of fish per month without a cancer risk of greater than one in ten thousand after the cleanup is complete?
I am not a scientist, but to me it seems reasonable to assume that spending a dollar at a really dirty river would provide more benefits to human health and the environment than spending the same dollar at a relatively clean river. For instance, a dredging operation is already underway on the Hudson. Would spending another $500 million there provide more benefits to society than spending $1 billion at Portland Harbor? Perhaps PRPs at relatively clean sites could be assessed charges based on the harm they cause to human health and the environment and the money allocated to the sites that promise the most benefit from cleanup. In this way, PRPs at relatively clean sites might end up spending less and the public would end up with more environmental benefit. Congress would have to act to enable a program of this nature. Short of congressional action, EPA should recall that CERCLA is remedial rather than punitive and be more mindful of the disparate cleanup levels set by different EPA regional offices. It should seek a more balanced approach that targets the dirtiest sites, maximizes environmental benefits, and reduces the inequities to PRPs that arise as a result of site location.
Published in Natural Resources & Environment, Volume 24, Number 4, Spring 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.