A little less than a month ago, as the US Environmental Protection Agency was working to complete a complex plan for cleaning up Portland's toxic harbor, a group of polluters responsible dropped a mammoth request on the agency.
On March 9, an attorney for the Lower Willamette Group, a collection of 14 polluters that includes the City of Portland and Port of Portland, filed a request for four years worth of comprehensive records on a huge array of elements [PDF]. For essentially any factor the agency might have taken into account when deciding how to mandate cleanup of the Willamette's badly polluted river bed, the LWG wanted all records—e-mails, recordings, internal communications, technical findings—from March 2012 onward.
Now, some people who have been watching the discussion around Portland's superfund cleanup are crying foul.
"This is going to be hundreds of thousands of documents," says Bob Sallinger, conservation director at the Audubon Society of Portland. "You’re talking about several years and massive amounts of communication. This is the kind of thing you get in discovery when you file a lawsuit."
Of course, anybody has a right to petition the federal government for public records—a point LWG spokesperson Barbara Smith raised repeatedly. But Sallinger and others are incensed by the request because of a unique time clock that exists around the Superfund—more than 2,000 acres of contaminated river bed extending roughly from the Fremont Bridge to the Columbia River.
After 16 years, the EPA is finally about to propose a cleanup plan that would have to be paid for by the entities who polluted the Willamette for more than a century (the potential list runs longer than 150 parties). Once that happens, there will be two months of public comment and a lot more haggling, and eventually the EPA will issue a final proclamation for the plan, the "record of decision." And the agency really wants to do that this year.
Why? Donald Trump. And Bernie Sanders, Ted Cruz, Hillary Clinton, et al. At the beginning of 2017, there will be a new president in office, and that could have huge implications for the management of the EPA. So there's a big press to get a decision on the books ASAP.
Now, there's this records request. Requests, actually. Aside from a big ask from the LWG, there's another, filed by a Chicago attorney on behalf of an entity called the Portland Harbor PCI Group. No one the Mercury's talked to knows knows precisely who's behind the group (the attorney hasn't returned our message), but its request is even more massive than LWGs.
"From my standpoint, this is a delay-and-disrupt tactic," Sallinger says. "You don’t drop massive FOIAs on the EPA without an intent to disrupt the process."
"It's becoming more annoying given where we are in this process," says Travis Williams, executive director of Willamette Riverkeeper.
The LWG argues it's just doing its due diligence.
"It is in no way a delay tactic. Absolutely not," says Smith, the spokesperson. "We recognize they're trying to get everything done this year. We're not at all disputing or asking for a delay."
Smith says the motivation is pure, and calls Sallinger and Williams' ire a "non-story." She notes the EPA is set to release something called a "feasibility study" next week, along with a proposed plan for cleanup. The study will set forth a range of options the agency contemplated when making its recommendation, and the LWG will have two weeks to respond. Smith says it's important they have all the information on hand to do so.
But it's unclear whether EPA will be able to wrangle the many, many requested documents by the time LWG has to respond to the feasibility study. And it's equally unclear the group could meaningfully sift through all those documents in time.
Smith points out that the LWG offered to modify its request to make it easy on the EPA. She shared a document detailing some of those proposed modifications—including decreasing the scope of the request, or working with EPA to extend the deadline for commenting on its feasibility study. It's unclear if any of those modifications have been made. Here's the document.
The EPA has been clear that the requests are a burden on its Seattle-based staff. Still, the agency says it will commit to releasing a cleanup plan next week. It didn't answer when the Mercury asked about delays that could occur after that plan's release.
"The two large Freedom of Information Act requests clearly add a significant workload for the staff who are preparing the Portland Harbor Proposed Plan, but we remain committed to our stated schedule and to releasing that plan in the next couple of weeks," agency spokesperson Mark MacIntyre said in an email last week. "We are also fully committed to transparency in our work and to fulfilling our obligations under FOIA."
Sallinger, meanwhile, is calling on the city to distance itself from the LWG's records request.
"It’s absolutely disgusting the the City of Portland's and Port of Portland's names are on there," he says. "It goes to show how utterly indifferent they have been to the public side of this equation."
So far, two Portland elected officials who've been keeping tabs on the Superfund issue haven't said whether they see anything problematic with the records requests. Commissioner Nick Fish, who runs the Bureau of Environmental Services, the city's lead agency on the superfund matter, said last week he hadn't seen an email from Sallinger laying out the issue (Fish was CC'd, along with this chief of staff).
"It looks like the city is not a party to one of the requests," he said in a text message. "More later."
We've not been able to reach him since. Meanwhile, Mayor Charlie Hales' office is looking into questions we sent along this morning. We'll update with new information from either official.
Update, 5:20 pm: Michael Jordan—the one who's director of BES—has responded to Sallinger's concerns. In an email sent this afternoon, Jordan said "obtaining this information through a FOIA request is routine and good practice."
And while Jordan says city officials share the concern over delay in the Superfund process, Jordan, like Smith, notes the LWG offered to tailor its request to make things easier on EPA. Here's his entire reply:
I understand that you have concerns regarding the FOIA request that the LWG, including the City, sent to EPA. The public records that were requested relate to EPA's revisions to and approval of crucial studies and reports, such as the Feasibility Study. The decisions that EPA is making are important to the community and the City is interested in transparency in that decision-making. Obtaining this information through a FOIA request is routine and good practice.
The City shares your view that the Superfund process should not be unnecessarily delayed. However, I understand that the LWG has made every effort to work with EPA for the specific purpose of not overburdening the agency or causing further delay in the proceedings. For example, LWG representatives have contacted EPA by phone and in writing, offering to discuss ways to identify the requested documents or to stage the production of the records. Finally, with respect to your question regarding the Allocation Group, the City did not join in that FOIA request.
Thank you for your email and ongoing engagement in the Portland Harbor Superfund process.