Formatted Title:

Strategic Approach to Settlement Negotiations in Large-Scale Waterway Cleanup Project: Let’s Join Forces for Success!

Background/Objectives:

In 2005, DEQ issued a cleanup approach for the Columbia Slough in Portland, Oregon, to address widespread and low-level contaminated sediment. Over time, sediment contamination from multiple facilities have commingled and determining who is responsible for past or ongoing contamination often involves technical and legal expertise, which is expensive and time consuming. Current and former owners and operators are often hesitant to investigate impacts to Columbia Slough sediment that may have originated from their facilities. In 2008, DEQ provided an alternative option for parties to settle their potential liability for Columbia Slough sediment contamination. Over the past 15 years, DEQ has gained a tool-box of practical experience to refine and expand funding alternatives to move sediment and watershed improvements forward in the Columbia Slough.

Approach/Activities:

In 2008, DEQ initially developed a settlement framework that calculates a “cash-out” payment for each individual facility based on estimated costs that would be incurred in a sediment investigation and cleanup. Settling parties pay into a state fund dedicated to sediment investigation and cleanup of priority areas. The settling parties also must agree to complete upland source control under DEQ oversight. In return, the settling parties receive a liability release from the State of Oregon, an agreement not to sue, and protection from third-party lawsuits for cleanup costs.

Over the past 15 years, DEQ has performed 29 settlement agreements from small ‘mom and pop’ facilities to local governments. Settlement agreements in large-scale water system cleanup sites involve complex negotiations and individual considerations for each site. Key factors include: cleanup (remedial design/remedial action) scope, regulatory compliance, responsibility and cost allocation, timeline, risk management, long-term monitoring, community engagement, enforcement mechanisms and adaptive management. Developing a framework to achieve milestones, specific deliverables and closure is critical for success.

Along with traditional settlements, DEQ has entered into other agreements to leverage sediment cleanup and watershed health, including prospective purchaser agreements, intergovernmental agreements and EPA Brownfield Grants.

Results/Lessons Learned:

Overall, settlement agreements for large-scale sediment cleanup sites require careful consideration of legal, technical, financial, and social factors to ensure successful outcomes. Once negotiated, the responsible parties typically are appreciative of the tangible ‘off ramp’ to address complex sediment cleanup liability.

Since 2008, this approach has allowed DEQ to negotiate approximately $25.5 million in direct settlement funds, $1 million in grant funds and $0.8 million dollars towards natural resource improvements. The funding has been used to implement six sediment investigations, two sediment area cleanups and one sediment cleanup scheduled for summer 2025. Several other sediment areas are in the cleanup planning process. Funds have also contributed to four habitat improvement projects.

Sarah Miller

Affiliation

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Strategic Approach to Settlement Negotiations in Large-Scale Waterway Cleanup Project: Let’s Join Forces for Success!