November 27, 2019

Sara Christensen
401 Water Quality Certification Coordinator
Oregon Dept. of Environmental Quality, NW Region
700 NE Multnomah Street, Suite 600
Portland, OR 97232

Submitted via email to​ [email protected]

RE: McCall Oil and Chemical Corporation’s Request for 401 Certification on Army
Corps Permit #NWP-1993-134-3

Dear Ms. Christensen,

Please accept these comments from Columbia Riverkeeper, Willamette Riverkeeper,

Center for Sustainable Economy, Portland Audubon Society, Oregon Physicians for Social
Responsibility, Neighbors for Clean Air, Human Access Project, 350PDX, Oregon Conservancy
Foundation, and Northwest Environmental Defense Center. On behalf of our tens of thousands of
members and supporters, we urge Oregon DEQ to deny McCall Oil and Chemical Corporation’s
request for 401 Certification on its draft Army Corps of Engineers permit (Permit
#NWP-1993-134-3). We also submit comments to the U.S. Army Corps of Engineers on McCall’s
application for a permit, and incorporate those comments by reference.

McCall has characterized its proposed activity as “maintenance dredging,” however this is
not the full picture of the proposed activity. The company has not performed dredging activities in
over two decades; McCall has not received authorization to dredge since well before the stretch of
the Willamette River bordering its facility was designated a Superfund Site in December 2000.1
Despite the fact that the entire proposed project falls within the Superfund Site, the public notice

1
​See​ Portland Harbor Final Remedial Investigation, Map 3.2-23 (Feb. 2016), ​available at
https://semspub.epa.gov/work/10/100017363.pdf​ (showing all dredged and capped areas within the Portland Harbor
Superfund Site since 1997)
provides very little information regarding the specifics of McCall’s proposed project and its
potential impacts on water quality. The public notice also fails entirely to mention neighboring
Zenith Energy Terminals Holdings LLC’s (Zenith) proposed plan to build a new pipeline system
connecting its facility to the McCall dock. For these reasons, and as discussed herein, we urge
DEQ to deny 401 certification for this project. At the very least, DEQ should require the Army
Corps to issue an individual permit to McCall; the use of a nationwide permit (NWP) for a
dredging project in a Superfund Site is wholly inappropriate. If McCall wants to proceed with this
project, it should reapply to the Army Corps for an individual permit and provide far more
explanation for how it proposes to protect water quality.

The purpose of state certification of federal permit applications is to ensure compliance

with state water quality standards. This role is so important that the Clean Water Act and the
Supreme Court have recognized states as having broad authority to consider water quality and
other related environmental impacts as part of the 401 Certification process. Section 401 of the
Clean Water Act provides that “[a]ny applicant for a Federal license or permit . . . which may
result in any discharge into navigable waters, shall provide the licensing or permitting agency a
certification from the State in which the discharge originates or will originate . . . that any such
discharge will comply with the applicable provisions of section 301, 302, 303, 306, and 307. 33
U.S.C. § 1341(a)(1). If DEQ denies certification, the Corps may not issue the permit. ​Id.

The scope of a state’s certification is tied not just to the discharge itself, but to the entire
project. In ​Pud No. 1 v. Wash. Dep't of Ecology​, the U.S. Supreme Court held that the text of
section 401(d) is clear that the certification requirement applies to “any applicant.” 511 U.S. 700,
711 (1994). Thus, “​[s]ection 401(d) allows the State to impose ‘other limitations’ on the project in
general to assure compliance with various provisions of the Clean Water Act and with ‘any other
appropriate requirement of State law.’”2 ​Id.​ We urge DEQ to utilize its broad authority to consider
not just the immediate water quality impacts from the dredging activity itself, but also the probable
impacts associated with the increased marine traffic and the transport of more hazardous
substances that will result from McCall having a deeper berth that it shares with Zenith. Failure to
do so risks running afoul of the Clean Water Act’s enforcement standards.

I. Nationwide Permit #3 is not Applicable to McCall’s Proposed Dredging Activities.

First and foremost, NWP #3 is not applicable to McCall’s proposed dredging activities. The
public notice issued on October 30, 2019, does not explicitly state which NWP McCall has applied
for coverage under, but the permit number, “NWP-1993-134-3,” implies that the company has
applied for coverage under NWP #3.3 As stated in the public notice, “[t]he applicant’s stated

2
The U.S. Environmental Protection Agency recently proposed regulatory changes that would drastically narrow the
allowable scope of state 401 certification authority. ​See​ Updating Regulations on Water Quality Certification, 84 Fed.
Reg. 44080 (Aug. 22, 2019). However, those regulatory changes, proposed in response to Executive Order 13868, are
not final. Thus, the Supreme Court’s decision in ​Pud No. 1 v. Wash. Dep't of Ecology​ is still controlling.
3
As a general matter, commenters hope that the permit number is not reflective of which version of the NWP McCall
has applied for; we assume the permit number is a holdover from the first 404 permit McCall was issued. Should the
Army Corps move forward with issuing McCall a NWP despite the clear need for the project to have an individual
permit, the Army Corps must use the NWP that was issued in 2017, which is the only set of NWPs currently in effect.
purpose is to perform maintenance dredging in the existing berth to re-establish previously
authorized depths.” While NWP #3 does apply to maintenance activities, it specifically exempts
“maintenance dredging for the primary purpose of navigation.” Issuance and Reissuance of
Nationwide Permits, 82 Fed. Reg. 1860, 1984 (Jan. 6, 2017). The public notice includes zero
details about the “primary purpose” of McCall’s proposed dredging, but in light of Zenith’s
activities and pipe locations, it is not hard to infer that McCall is seeking the ability to bring larger
ships into its berth. This type of activity is not covered under NWP #3; instead McCall would need
to apply under NWP #35 which covers “the removal of accumulated sediment for maintenance of
existing marina basins, access channels to marinas or boat slips, and boat slips to previously
authorized depths or controlling depths for ingress/egress, whichever is less.” 82 Fed Reg. at 1992.
At a minimum DEQ must seek more information from McCall regarding the purpose of the
project, and DEQ must release this information to the public for ​notice and comment.

However, irregardless of whether McCall has applied for NWP #3 or NWP #35, its
proposed project is not eligible for coverage under an NWP because the scope of the project is well
beyond what should be categorized as “maintenance dredging” and will result in a more than
minimal adverse impact on the environment.

II. Oregon DEQ Should Require McCall to Obtain an Individual Permit.

McCall’s proposed activity will have more than a minimal adverse effect on the
environment and thus is not eligible for coverage under an NWP. The language of the Clean Water
Act is clear that NWPs may only be issued for activities that “will cause only minimal adverse
environmental effects when performed separately . . . .” 33 U.S.C. § 1344 (e)(1). “The phrase
‘minimal adverse environmental effects when performed separately’ refers to the ​direct and
indirect​ adverse environmental effects caused by a specific activity authorized by an NWP.” ​See
82 Fed. Reg. at 1860 (emphasis added). Thus, the Corps and DEQ need to consider not just the
environmental impacts of the dredging itself, but also the other environmental impacts of the
project. None of these appear to have been identified, must less considered, by the agencies.

As DEQ is surely aware, Zenith, which operates a facility neighboring McCall’s, has
applied to the City of Portland to build three new pipes under NW Front Ave stretching from its
own property to McCall’s dock. Zenith’s stated purpose for these new pipes is to be able to
transport biodiesel and methylene diphenyl diisocyanate (MDI) via ship.4 Although the City’s
Office of Community Technology has denied Zenith’s request, the company has threatened to sue
the City over its decision5 and continues to seek approval for the pipes from other City offices.6
Although the public notice document contains no explanation for why McCall would like to
dredge its berth, it is highly likely that the proposed dredging is connected to, if not because of,
Zenith’s desire to bring larger ships through McCall’s dock. DEQ cannot evaluate McCall’s
4
​See ​Attachment B, Letter from Dirk Kramer, Project Manager, Zenith Energy Terminals Holdings, LLC, to Jennifer
Li, Office for Community Technology (Sept. 9, 2019)​.
5
​See​ Attachment C, Letter from Eric L. Martin, Stoel Rives LLP, to Elisabeth Perez, Interim Director, Office for
Community Technology (Oct. 24, 2019).
6
​See ​Attachment D, Land Use Review Application from JHI Engineering, File # LU 19-254153 GW (Nov. 18, 2019).
application, the first one in decades and one which has been submitted during the heat of Zenith’s
battle for its own permits, with blinders on. It must consider both the direct and indirect effects
McCall’s proposed dredging project will have on the water quality of this stretch of the Willamette
River.

The Army Corps, and DEQ through the 401 certification process, must consider not only
the direct environmental effects of the dredging itself (which it has not yet identified for the
public), but also the indirect effects associated with the larger ships that a deeper berth would
permit. The proposed dredging project will almost certainly result in increased marine traffic of
larger ships carrying highly hazardous substances. ​According to the U.S. Environmental Protection
Agency, ​one of the substances Zenith plans to pipe through McCall’s dock, MDI, is a​ “well known
dermal and inhalation sensitizer[] in the workplace and ha[s] been documented to cause asthma,
lung damage, and in severe cases, fatal reactions.”7 Additionally, MDI reacts with water. Even
very small quantities of water can cause a reaction, generating CO​2​ which rapidly increases the
pressure inside closed containers.8 MDI is also denser than water, so any spill that occurs during
transport or transfer would result in it initially sinking to the bottom of the river.9 This chemical
poses incredibly dangerous risks for the public, and for the Willamette and Columbia Rivers; DEQ
must consider the potential water quality impacts of an MDI spill, and other chemicals involved in
McCall’s activities, as part of its analysis of the 401 certification request. Additionally, McCall’s
facility, through which the MDI will be traveling, is located on a stretch of the Willamette River
that is part of the Portland Harbor Superfund Site; any spills occurring at the dock could greatly
complicate the Superfund clean-up at this location and immediately down river.

With respect to the Portland Harbor Superfund Site, the public notice mentions that
McCall’s proposed project site is entirely within the Superfund site. However, beyond mentioning
that “[t]he work will be coordinated with the USEPA,” the public notice includes no details as to
how the work will be conducted so as to minimize the serious water quality risks associated with
dredging a riverbed known to contain numerous hazardous substances. If McCall has not provided
this information to DEQ, we strongly encourage DEQ to deny the 401 certification until such
information is provided. In the absence of specific information regarding how McCall plans to
dredge in a Superfund Site, DEQ cannot meaningfully evaluate the water quality impacts of the
proposed project.

Because of the risk of serious water quality and related environmental impacts from both
the dredging itself and the resulting increased ship traffic, McCall’s project does not qualify for an
NWP and DEQ should deny the 401 Certification. At the very least, McCall should be required to
reapply for an individual permit and provide detailed information regarding the purpose of its
proposed project and how it intends to mitigate the adverse environmental impacts associated with
its project.

7
EPA Methylene Diphenyl Diisocyanate (MDI) and Related Compounds Action Plan [RIN 2070-ZA15]( April 2011)
available at​ ​https://www.epa.gov/sites/production/files/2015-09/documents/mdi.pdf
8
BASF, MDI Handbook, North America (2019) at 12, ​available at
https://polyurethanes.basf.us/files/pdf/2019-MDI-Handbook_final.pdf
9
​See​ ​id.​ at 6.
III. The Application Lacks Information Pertaining to the Water Quality of the Receiving
Waters.

The public notice document does not identify or discuss any information regarding the
water quality of the receiving waters. Without this information, Oregon DEQ is incapable of
analyzing the 401 certification request. Under Oregon’s water quality management plan, “the
Department of Environmental Quality will continue to manage water quality by evaluating
discharges and activities, whether existing or a new proposal, on a case-by-case basis, based on
best information currently available and within the limiting framework of minimum standards,
treatment criteria and policies which are set forth in the plan.” OAR 340-041-0001(2). DEQ’s task
in issuing a 401 certification request is to ensure “adequate terms and conditions to prevent an
exceedance of water quality criteria.” OAR 340-041-0002(1). The state “must in every case”
provide the “highest and best practicable treatment and/or control of wastes, activities, and flows . .
. .” OAR 340-041-0007(1). Without any foundational information, DEQ cannot undertake a 401
certification.

Additionally, DEQ should review McCall’s proposed project to ensure compliance with
DEQ’s antidegradation policy. The Antidegradation Policy is an important component of Oregon’s
water quality standards. The purpose of the policy “is to guide decisions that affect water quality to
prevent unnecessary further degradation from new or increased point and nonpoint sources of
pollution, and to protect, maintain, and enhance existing surface water quality to ensure the full
protection of all existing beneficial uses.” OAR 340-041-0004(1). “Maintenance dredging” is one
of a handful of “recurring activities” that are specifically exempted from the antidegradation
review requirements “so long as they do not increase in frequency, intensity, duration, or
geographical extent” because they are “regularly-scheduled, recurring activities.” OAR
340-041-0004(4)(c). The dredging that McCall is now proposing to undertake, however, is not a
“regularly-scheduled, recurring activit[y].” McCall has not undertaken, or sought a permit for,
dredging activities in over two decades. The proposed activity currently before the Army Corps
and DEQ is a proposal to remove well over two decades worth of sediment from a Superfund Site.
The public notice lacks any details about the projected impacts of McCall’s proposed dredging; but
it is not difficult to surmise that stirring up two decades worth of sediment in a Superfund Site,
which would directly result in significant environmental and human health risks, is wholly
inconsistent with Oregon’s water quality standards and antidegradation policy. Additionally, an
increase in the amount of marine traffic related to McCall and Zenith moving up and down the
Willamette and Columbia rivers will result in significant water quality impacts. Because of this
significant risk, we strongly urge DEQ to deny 401 Certification under DEQ’s Antidegradation
Policy.

IV. Oregon DEQ Should Ensure It Exercises Its 401 Certification Authority In a Timely
Manner.

Finally, we strongly encourage Oregon DEQ to carefully review the timeline under which
McCall applied for 401 Certification. DEQ has no more than one year, from the date McCall
submitted its request, to exercise its 401 certification authority. Section 401 is clear that the State
must act “within a reasonable period of time (which shall not exceed one year) after receipt of [the]
request.” 33 U.S.C. § 1341(a)(1). If the State does not act within this one year period, its
certification authority under section 401 is deemed waived. ​Id.​; ​see also Hoopa Valley Tribe v.
Fed. Energy Commission​, 913 F.3d 1099 (D.C. Cir. 2019). EPA has attempted to further narrow
this timeframe for response by advising that “the CWA does not guarantee that a state or tribe may
take a full year to act on a Section 401 certification request, but only grants as much time as is
reasonable.” Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized
Tribes (June 7, 2019).10 The public notice put forth for comment on October 30, 2019, does not
indicate when McCall initially submitted its request for certification. Since an earlier version of
this same permit was put forth for public comment on January 24, 2019, we strongly encourage
DEQ to reach out to its state attorney for advice regarding DEQ’s timeframe to respond to ensure
the agency does not inadvertently miss its response deadline.

The scope of McCall’s proposed activity, which would occur entirely within a Superfund
Site, is beyond what can reasonably be categorized as “maintenance dredging” and permitted
under an NWP. Furthermore, the application provides little to no information regarding whether
the potential water quality impacts from the proposed project have been assessed. Absent this
information, neither DEQ nor the public can be assured that the discharge will comply with
applicable water quality standards and related state law. For these reasons, we urge DEQ to deny
401 Certification for Army Corps Permit #NWP-1993-134-3.

Sincerely,

Erin Saylor, Staff Attorney

Columbia Riverkeeper.

s/ Elisabeth Holmes
Elisabeth Holmes, Staff Attorney
Willamette Riverkeeper

Attachments
Attachment A: Comments to the U.S. Army Corps of Engineers
Attachment B: Zenith Energy Terminal Holdings LLC’s application to the City of Portland’s
Office for Community Technology
Attachment C: Stoel Rives LLP’s letter to the Office for Community Technology
Attachment D: JHI Engineering’s Land Use Review Application

10
​Available at​ ​https://www.epa.gov/sites/production/files/2019-06/documents/cwa_section_401_guidance.pdf