Cleanup and Protection of Our Nations Waterways Through Regulation and Enforcement will Continue to be a Priority in 2011 - The Specter of Sediments

November 7, 2011
Client Alert Newsletter Forecast 2011

Beneath the murky waters of the Nation's industrial waterways lays unprecedented environmental liabilities that little more than a decade ago very few businesses, municipalities or property owners gave much thought to – contaminated sediments. Sediments sites are becoming increasingly common and are not confined to any one region of the country: Lower Duwamish Waterway, Seattle, WA; Portland Harbor, Portland, OR; Lower Fox River, Northeastern, WI; Buffalo River, Western, NY; Onondaga Lake, Central, NY; Gowanus Canal, New York, NY; Hudson River PCB Superfund Site; and the Diamond Alkali Superfund Site which includes the Lower Passaic River Study Area and Newark Bay sites in Northern, New Jersey, to name a few. The contaminated sediments at these sites are often the legacy of more than a century of industrialization and development. Sources of contamination over the decades commonly include industrial discharges, storm water discharges, storm water runoff, combined sewer overflows, municipal wastewater systems and even air deposition. The contaminants at issue vary, but often involve some combination of dioxin, PCBs, heavy metals, VOCs and PAHs. The federal and state partnerships that drive the investigation and remediation of these sites often add complexities, particularly once you factor in the state and federal natural resource trustees that invariably are involved. The remedial investigations, natural resource damages assessments, remediation, natural resource restoration and compensation for these sites can easily run into the billions of dollars. These sites are also large and technically complex.

At MGKF we are involved at several sediments sites, in multiple jurisdictions, on behalf of a very diverse array of clients, and we are familiar with the complexities of working with state and federal agencies during investigation and cleanup activities as well as dealing with the myriad of state and federal natural resource trustees involved at these sites such as the U.S. Fish and Wildlife and the National Oceanic and Atmospheric Administration. Supplementing our experience with sediments sites is our long history of representing clients and coalitions in the development and implementation of watershed-wide TMDLs.

Almost anyone can become involved in a sediments site. Direct industrial dischargers along a river are easy targets, as are municipalities with storm water, sanitary and industrial discharges to a waterway. Equally, however, we have seen indirect dischargers ensnared in these cases, or even businesses that are not contiguous to the waterways in question, but may have had contaminated runoff that could have reached the waterways in question. Since responsibility for these sites can go back a century or more, successor liability is tremendously important. Operations conducted on your site a hundred years ago can also come back to haunt you. Since a political solution to these tremendously expensive sites seems unlikely anytime soon, and the web of liability is being spread broadly, anyone near an impacted waterway needs to be cognizant of the liability and costs that may be coming down the river.