Early this month the EPA released its draft plan to remove toxic contamination from the bottom of the Willamette River. The plan represents the culmination of 16 years of study, a federal mandate to remove toxic substances, and extensive jockeying from government agencies, polluting industries and community and environmental groups.
The plan stumbled out of the gate at 2 p.m. June 8, and critics took aim immediately.
“It’s a huge deal,” said Mary Ann Warner, of the Portland Harbor Community Coalition. “It’s just beyond me how they could actually put out this plan and think that it was OK.”
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On June 24, the Portland Harbor Community Coalition held a 50-person press conference downtown, blasting the EPA’s draft plan, which would leave 92 percent of the 10-mile stretch “toxic to both people and wildlife indefinitely,” the coalition said.
The plan – dubbed Alternative I – calls for removing just 150 acres of the toxic stew at the bottom of the river. A stunning 1,876 acres of contaminated sediment would be left alone to see how well it recovers on its own – relying on the flow of up-stream sediments to simply cover the pollution over an uncertain period of time (a technique called “monitored natural recovery”). Another 64 acres would be “capped” with varying combinations of gravel, clay and sand. The caps would be monitored to see how quickly they are destroyed by erosion.
“Companies that collectively make billions of dollars a year have dumped their waste in the river at the expense of human beings,” said Rahsaan Muhammad, a PHCC organizer. “Bayer CropScience, Chevron, Gunderson, Exxon, BP, Shell, Schnitzer Steel, Toyota, the U.S. Navy, should pay their fair share. They are not paying their fair share.”
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Earlier that day, the EPA announced they would extend the comment period on their draft plan to a total of 90 days – giving people until Sept. 6 to submit comments.
River advocates at the PHCC say that is still not enough time and are asking for a total of 120 days.
“The fact is that a lot of migrant families that eat from this river leave during the summer to visit their families. That kind of cuts into their 60-day comment period,” Warner said.
Warner and many other river advocates argue that the EPA’s plan represents a giveaway to big polluters. And it’s not hard to see how that happened: the polluting industries have been putting pressure on elected officials for several years, and officials redirected that pressure at the EPA.
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In an Environment and Economy Subcommittee meeting in September, Rep. Kurt Schrader (D) told an EPA official, “I am concerned about EPA’s approach to that harbor. ... And I am worried about the science that is involved in this,” adding: “You are supposed to do a cost-effectiveness analysis. ... And that is not what I am seeing in the report.” Schrader then interrupted EPA employee Mathy Stanislaus six times before letting him explain the work the EPA had done.
Earlier that year, Schrader told The Oregonian: “Every time they try to defund the EPA, I vote against that. But when people start gnawing at the edges, where it’s hurtful to Oregon’s economy and only gets marginal benefit, we have to think about that.”
In a telephone press conference unveiling the draft plan on June 8, EPA officials repeatedly described it as the most “balanced” plan among eight alternatives they were considering (alternatives B-I). When asked whether they believed this alternative represented a balanced approach to the treaty rights of the Yakama Nation, which relies heavily on local fisheries, EPA Region 10 Administrator Dennis McLerran responded, “We do,” adding: “What we heard from tribes is that they would like to see a watershed approach that actually goes beyond just the cleanup of the site itself. ... They want to see a cleaner river, they want to see the risks reduced. They did not create this pollution. They did not create this insult to the river, so they would like to see a very aggressive cleanup here.”
When asked if he thought the plan met treaty obligations to the tribes, McLerran responded, “We do.”
One of the people listening in to that press conference was Rose Longoria, Yakama Nation’s Superfund coordinator. “I was very troubled …. and rather surprised by his response. I think the only thing that was mentioned by Dennis McLerran that we considered was the loading to the Columbia River. That is probably the only thing that I can see where EPA slightly heard Yakama and our concerns. But in no way shape or form does the plan address Yakama’s concerns or needs for clean healthy fish. This plan is entirely not protective of Yakama’s treaty resources.
“Allowing these toxins to remain in the river to be covered up or washed down to the Columbia River is unacceptable, and even more than unacceptable, it is a violation of our human rights and it is a violation of the Yakama Nation’s treaty rights.”
Rather than balancing the needs of various river users, Longoria says the agency chose to strike a balance between “the needs of industry and business and profits.
“I’m rather disillusioned, quite frankly, she said. “It seems that EPA has made a decision, and that decision is very much on the side of appeasing the industries so that they will sign on to moving forward with clean up. It seems to me they understood what industry would accept, and that’s what they proposed – that’s what they built the proposal around. And they’re moving forward with that, and I’m having a hard time seeing how we get a different plan that’s actually more beneficial to the resources, the people and Yakama’s treaty rights.”
In 2011, Sens. Ron Wyden and Jeff Merkley joined Reps. Blumenauer and Schrader for a tour of the Portland Harbor hosted by Vigor Industrial, one of the EPA’s responsible parties. Months later they signed a letter to EPA administrator Lisa Jackson describing the Portland Harbor as “a regional gateway to global markets” that generated tax revenue while “getting people back to work.”
The letter then suggested that “as EPA performs its evaluation, it is imperative to consider the economic impacts of EPA’s decisions on our community,” adding, “In this time of limited resources and budget constraints ... the Portland Harbor conversation about cleanup options should be focused on where this point of diminishing returns lies.”
At a Feb. 9 Portland City Council work session, Commissioner Steve Novick repeatedly interrupted a prepared update from EPA project manager Cami Grandinetti, first demanding to know how many lives would be saved by a river cleanup, then insisting that money spent on the river would have to be taken away from the homeless or from bike infrastructure. Backed with similar messages from Commissioner Nick Fish, who oversees the Bureau of Environmental Services, the message was clear: City Council was not interested in a thorough cleanup.
Chloe Eudaly, who is challenging Novick for his seat this November, said she was disappointed with the EPA’s cleanup plan, calling it “a gift to the responsible parties.”
“I’d like the polluters to sit down for the rest of this discussion so that we can hear from the community, especially from environmental advocates and marginalized groups, who are disproportionately at risk due to proximity to and use of the river, from environmental advocates and experts, and most importantly from the various Confederated Tribes whose health, way of life, and treaty rights continue to be threatened by the use and abuse of the Willamette River.”
The Portland Harbor Community Coalition, whose member groups span homeless advocates, communities of color and native organizations, said that a complete cleanup of the river would provide good jobs to local residents while putting our local economy on a path toward genuine sustainability.
But getting to those jobs means confronting the jobs that keep the river polluted. The Lower Willamette Group boasts on its website that “100,000 jobs are dependent on the economic activity in the harbor area.”
“The Lower Willamette Group only exists to fulfill our orders with EPA for the remedial investigation feasibility study,” said Barbara Smith, the LWG spokesperson. “The members only came together for that purpose of the Superfund study.”
When asked whether the LWG recognized any obligations to the river or its other users, Smith insisted that they do. “That’s why they stepped up, she said. "To work with EPA on the scientific studies – because they know that the Willamette is an important resource for the public, for recreation, for commerce, for jobs.”
“The goal of Superfund,” she said, “is not to eliminate contamination – it’s to reduce risks to human and environmental health. So the goal is not to remove every chemical.”
When informed that the levels of pollution deemed acceptable by the Lower Willamette Group are currently being described by the Yakama Nation as a violation of their treaty, civil and human rights, Smith responded, “I can’t respond to that.”
Since the major breakthroughs of fishing rights litigation in the 1970s, the Pacific Northwest has seen a series of successful lawsuits that uphold treaty obligations.
Since the fight for fishing access has largely been won, treaty litigation has increasingly taken the form of complex settlements to restore habitat through large-scale actions such as dam removal. An aggressive cleanup of the Portland Harbor seems to be very much in line with that trend.
Longoria said that about five years ago the Yakama Nation undertook a survey of toxic threats to the Columbia River. They started by identifying all hazardous waste sites in the Columbia Basin, which located a total of 114,000 in Washington, Oregon and Idaho.
They then narrowed their search to sites with serious impacts to the main-stem Columbia River and its major tributaries, focusing attention on sites within a half-mile from of the Columbia riverbanks. This produced a list of 766 hazardous material sites. Narrowing down even further to those sites that were the most critical for marine habitat they had a list of 68 priority sites, and of all these sites, the Willamette Harbor was one of the largest they encountered.
Longoria asked EPA officials at their first public hearing when they would consider their remedy complete under the current draft plan, as the Superfund law (CERCLA) prevents legal challenges until the cleanup option is complete. No EPA official at the meeting would provide an answer, but Longoria’s staff has estimated it will take 30 years. In that amount of time, it’s totally unknown how many of the 150 responsible parties will remain financially solvent. And as the Port of Portland itself has observed: “Sometimes companies that caused contamination are no longer in existence. When a historical PRP (potentially responsible party) business leaves no funds to pay for cleanup, the remaining PRPs must assume those costs.”
Given the treaty obligations in play, the injustice of delayed action, and the fact that the splitting of costs among PRPs can only become less fair over time, it would be an immense benefit for all parties to engage in an immediate full-scale cleanup.
Rose Longoria said that the Yakama Nation is hoping for that exact outcome when she travels next month to the nation’s capital for a meeting with EPA Administrator Gina McCarthy.
“On July 25 we are asking for Gina McCarthy’s leadership in honoring our treaty rights by implementing an aggressive cleanup of the Portland Harbor Superfund site that leads to clean, healthy fish that are safe for our people to eat. Our message to Gina McCarthy is this: Over a century and a half ago, Yakama leaders were assured that their ability to take fish from our usual and accustomed areas including the Willamette would continue ‘as long as the grass grows and the river flows.’ This promise implied that the fish would be safe to eat and free from toxins and poisons.”
“The Indians did not understand the treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs,” wrote Judge William Fletcher in a June 27 appeals court ruling that affirms tribal fishing rights. Washington territory Gov. Isaac Stevens, Fletcher wrote, “did not make ... such a cynical and disingenuous promise.”