Oregon Files CERCLA Complaint Against U.S. Army Agencies

The State of Oregon, acting by and through the Oregon Department of Environmental Quality (DEQ), sued defendants the U.S. Department of the Army and the Army Corps of Engineers seeking to recover costs that the state allegedly incurred in conducting and managing the clean-up of a site the defendants contaminated with various chemicals and materials. The state’s District of Oregon civil complaint alleging Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Oregon law causes of action was filed on Monday.

According to the filing, the parties dispute who is responsible for clean-up costs associated with the site, part of the Bonneville Dam complex, located on the Columbia River, approximately 40 miles east of Portland, Ore. The plaintiff contended that since the 1940s the defendants have used the site for a variety of purposes, including as a landfill, a disposal site for light bulb debris, and for sandblasting and painting operations. The site is currently part of Bonneville Dam and Lock, which has a visitor center, fish ladders, a service center, and equipment and sandblast buildings, the complaint explains.

The plaintiff averred that areas of the site are now contaminated with petroleum hydrocarbons, polycyclic aromatic hydrocarbons, metals, like lead and mercury, polychlorinated biphenyls (PCBs), pesticides/herbicides, and volatile organic compounds as a result of the defendants’ former activities. The complaint also explains that in 1998 Oregon and the defendants entered into an agreement whereby in exchange for DEQ’s oversight of the investigation and its clean-up of hazardous substances, the Corps would pay DEQ for direct and indirect project costs. The arrangement was supposedly confirmed in a subsequent letter.

Since then, both parties have reportedly undertaken various remediation efforts to remove groundwater and soil contaminants. Yet, Oregon argues, [t]he Corps’ contamination of the Site has caused significant impacts to the river sediment and the fractured bedrock river-bottom in the vicinity of the Site. The full nature and extent of in-river contamination is undefined. Resident fish such as smallmouth bass caught near the Site contain extremely high concentrations of PCBs as well as other [Contaminants of Concern].”

In September 2019, the Corps gave notice and terminated the parties’ agreement. According to Oregon, this July, the Corps informed it that under current law, it was not legally permitted to pay DEQ its costs under the agreement. Furthermore, the Corps said it would not reimburse DEQ for any future-incurred costs and demanded that DEQ return unauthorized payments that the Corps had previously made. In August, the Corps sent Oregon a bill for the unauthorized payments, totaling nearly $770,000.

Oregon argued that this interpretation is incorrect and brings a CERCLA cost recovery claim, a strict liability remedial action costs claim under Oregon law, and seeks declaratory relief. Specifically, the state sought an order stating that the parties’ agreement was and is enforceable and that as a result, “the CERCLA response costs and/or remedial action costs incurred by DEQ and paid by Defendant to date were properly paid to the State of Oregon pursuant to the Agreement.” As for cost recovery, Oregon argued that it has incurred costs in excess of $71,000 since the Corps terminated the parties’ agreement.