Dear Representative of Seattle Business, Inc.,
The EPA has determined that you may be responsible under CERCLA, commonly known as the Superfund law, for the cleanup of the Site or the costs the EPA has incurred in cleanup of the Site.
EPA, Region 10
Sound familiar? It will to a growing number of Seattle businesses with a connection to the Lower Duwamish Waterway. The EPA is in the process if issuing a new round of General Notice Letters (GNLs) to entities it perceives as having potential liability at the site. The EPA has not yet published a list of GNL recipients on its website but intends to do so in the next week. A March 2010 list obtained through a Freedom of Information Act request included 58 entities.
Some recipients will be left wondering why they received a GNL because, contrary to EPA guidance, the letters lack an explanation. Recipients are told that EPA has reasons, but the reasons are not disclosed. It may be obvious to some recipients such as those who currently own property on the waterfront or who have knowledge of a release at their property. But it can be a real mystery for recipients whose operations in the area ended decades ago and who have no knowledge of releases or for recipients who are associated with more than one property on the waterway.
In addition to making it more difficult to decide how to proceed when the inevitable invitation to help pay for the cleanup from the Lower Duwamish Waterway Group (LDWG) arrives, the lack of an explanation causes problems for recipients who are seeking insurance coverage from multiple insurers who insured different facilities, entities, or time periods. On the bright side, receipt of a GNL makes it much more difficult for insurance companies to deny they have a duty to defend their insured.
What’s next? The EPA is planning to release its Proposed Plan for cleanup in January 2013 and a final cleanup decision about a year later. The LDWG, which consists of Boeing, King County, Seattle, and the Port of Seattle, have been cooperating with the EPA in the investigation of the site and have produced the key studies and reports the EPA will consider as it prepares the Proposed Plan. The LDWG has likely expended tens of millions of dollars on the process to date and cleanup itself is likely to cost several hundred million. Recipients of GNL letters, and even recipients of 104(e) Information Requests, should not be surprised when they are invited by the LDWG to join the party.
Miller Nash has extensive experience representing parties at sediment Superfund sites, including Portland Harbor, Commencement Bay, Acushnet Harbor, New Bedford Harbor, and the Lower Duwamish Waterway. If you have any questions, Miller Nash environmental attorneys are available to help.