August 14, 2019

Tiffany Yelton-Bram, Water Quality Manager

Oregon Department of Environmental Quality
Northwest Region
700 NE Multnomah St., Suite 600
Portland, OR 97232

Sent via Electronic Mail to: yelton-bram.tiffany@deq.state.or.us

Re: Permit Transfers, NPDES-IW-B01, permits # 100976, 10199

File # 21489
Location: Willamette Falls Paper Company, 4800 Mill St., West Linn

Dear Ms. Yelton-Bram,

I am writing on behalf of the Northwest Environmental Defense Center (NEDC) because of our
concerns over the recent transfer of two National Pollutant Discharge Elimination System
(NPDES) permits from West Linn Paper Company (WLPC) to a new entity, Willamette Falls
Paper Company, Inc. Stormwater and wastewater discharges from this site, near the base of
Willamette Falls in West Linn, not only impact Willamette River water quality; these discharges
also have a significant impact on Willamette Basin salmon and steelhead populations, as well as
the recreation experience in a section of the river seeing increased use. NEDC has long
advocated for these and other beneficial uses in the Willamette River, and is concerned that the
recent transfer of these permits did not comply with relevant Clean Water Act regulations.
NEDC appreciates the opportunity to submit these concerns, and requests a response to the
questions outlined at the end of this letter.

NEDC is an independent, nonprofit environmental organization established in 1969 by a group

of professors, law students, and attorney alumni at Lewis & Clark Law School. The
organization’s members include citizens, attorneys, law students, and scientists. NEDC’s mission
is to protect the environment and natural resources of the Pacific Northwest by providing legal
support to individuals and grassroots organizations with environmental concerns, and by
engaging in education, advocacy, and litigation independently and in conjunction with other
environmental groups. NEDC’s membership includes individuals who visit and recreate near the
Willamette Falls Paper Company, and in waters impacted by the facility’s stormwater and
wastewater discharges.

Factual Background

The site in question is located in West Linn at 4800 Mill Street. Stormwater and wastewater from
the site is discharged to the Willamette River near the base of Willamette Falls. A paper mill has
operated at the site since 1889, and in 1997 the mill began operating under the name West Linn
Paper Company. The facility was abruptly closed in 2017. Then, in June 2019, it was announced
1
that the mill would restart operations under a new entity, Willamette Falls Paper Company, Inc.
A press release from the new owner stated that unlike the site’s previous operators, it planned to
integrate non-traditional materials into the paper-making process, including agricultural waste,
2
hemp, and wheat straw.

At the time of the plant’s closure in 2017, water was discharged from the site pursuant to two
NPDES permits. For stormwater discharges, DEQ granted WLPC coverage under the 2017
1200-Z industrial stormwater general permit, # 10199. Wastewater discharges from the site were
regulated under an individual NPDES Permit, # 100976. This individual permit was originally
issued on September 29, 1992, and has been renewed multiple times. The permit expired in
September 2014, and was then administratively extended.

On June 27, 2019, WLPC submitted to DEQ requests to transfer the site’s two NPDES permits to
3
Willamette Falls Paper Company, Inc. These requests did not specify a date for which permit
coverage should be transferred and did not include an agreement between WLPC and Willamette
Falls Paper Company regarding the transfer of permit responsibility, coverage, and liability.
Further, the requests state that the transfer of ownership will not “result in a change in the
character of pollutants being discharged.”

1
​See “​Columbia Ventures Leases Shuttered West Linn Paper Mill,” The Columbian, June 26, 2019, ​available at
https://www.columbian.com/news/2019/jun/26/columbia-ventures-leases-shuttered-west-linn-paper-mill/

2
​The press release is available at ​http://www.paperage.com/2019news/06_26_2019willamette_falls_paper.html

3
Notably, the Permit Transfer Request for Permit No. 100976 (the wastewater permit) lists “Willamette Falls Paper
Company” as the transferee under “NEW Legal Name,” although that legal entity does not appear to exist according
to the Oregon Secretary of State business registry. Instead, “Willamette Falls Paper Company” was an assumed
business name that was cancelled on June 25, 2019, two days before DEQ received the transfer requests. The Permit
Transfer Request for the stormwater general permit, by contrast, lists “Willamette Falls Paper Company, Inc.” as the
transferee. That entity is registered with the Oregon Secretary of State, having been incorporated on June 25, 2019.
NEDC points out this inconsistency as a courtesy, to facilitate any necessary corrections.
DEQ transferred the site’s individual NPDES wastewater permit on July 16, 2019 and transferred
the stormwater general permit on August 8, 2019. Recent observations of the site indicate that
operations at the facility have restarted under the new owners.

Legal Background

NEDC is concerned that the transfer of WLPC’s two NPDES permits was not handled in
accordance with relevant Clean Water Act regulations. The requirements for transferring an
NPDES permit to a new entity are found at 40 C.F.R. § 122.61. That section identifies two types
of transfers: “Automatic transfers” and “Transfers by modification.” An “automatic transfer” to a
new permittee may only occur if (1) the current permittee notifies DEQ at least 30 days prior to a
proposed transfer date, (2) that notice “includes a written agreement between the existing and
new permittees containing a specific date for transfer of permit responsibility, coverage, and
liability between them;” and (3) DEQ does not notify the parties of its intent to modify or revoke
and reissue the permit. 40 C.F.R. § 122.61(b).

If these requirements for an automatic transfer are not met, then a permit may only be transferred
if (1) it qualifies as a “minor modification” under 40 C.F.R. § 122.63(d), or (2) if it is modified
or revoked and reissued under 40 C.F.R. § 122.62(b)(2). To qualify as a “minor modification,”
two elements must be present. First, DEQ must determine that no change in the permit is
necessary, aside from the change in ownership or operational control. And second, as with an
automatic transfer, there must be a written agreement between the existing and new permittees
containing a specific date for transfer of permit responsibility, coverage, and liability. 40 C.F.R.
§ 122.63(d).

If the permit transfer does not qualify as a minor modification, then the only available method
for transfer is for the permit to be modified or revoked and then reissued to the new permittee. 40
C.F.R. § 122.61(a). The procedures for this method of transfer are found in § 122.62, and include
issuance of a draft permit with at least 30 days for public comment. ​See id. ​§§ 122.62, 124.10.

Deficiencies in West Linn Paper Co.’s Permit Transfer Requests

There are good reasons for the transfer requirements listed above. These requirements provide
clarity to the relevant agency, and to the public, as to when permit coverage and liability will
apply to a new entity. Further, the regulations give the public the opportunity to assess and
comment, when appropriate, on any proposed new activities resulting from the transfer. As
outlined below, in this instance it appears that the permit transfer processes were not executed in
compliance with these important regulations.
 a. The Permit Transfer Requests do not Qualify as “Automatic Transfers”

As discussed above, an “automatic transfer” to a new permittee may only occur if (1) the current
permittee notifies DEQ at least 30 days prior to a proposed transfer date, (2) that notice “includes
a written agreement between the existing and new permittees containing a specific date for
transfer of permit responsibility, coverage, and liability between them;” and (3) DEQ does not
notify the parties of its intent to modify or revoke and reissue the permit. 40 C.F.R. § 122.61(b).
Those requirements are not met here.

As an initial matter, the permit transfer requests for both NPDES permits do not include “a
specific date for transfer of permit responsibility, coverage, and liability” from WLPC to the new
entity, Willamette Falls Paper Company, Inc. DEQ’s form for submitting an NPDES permit
transfer request contains a space for the date the transfer is to occur; in both requests that space is
simply left blank. Without this explicitly identified date of transfer, an “automatic transfer” of
permit coverage to the new entity is not available. ​Id.

In addition to the lack of a specific transfer date, the permit transfer requests also do not include
an “agreement between the existing and new permittees” regarding “transfer of permit
responsibility, coverage, and liability between them.” ​Id.​ The permit transfer request forms
include no such agreement, and NEDC has not been able to locate any separate agreement
between WLPC and Willamette Falls Paper Company, Inc. In the permit transfer request form,
the transferor makes no agreement, but only an acknowledgment, as follows: “I hereby
acknowledge​ the pending transfer of the above referenced permit.” (Emphasis added). Further, in
the permit transfer request form, the transferee makes no agreement with the transferor regarding
“permit responsibility, coverage, and liability,” but only agrees to “fully comply with all terms
and conditions of the permit and DEQ rules.” At most, these written statements in the permit
transfer request form amount to an agreement by the transferee with DEQ to comply with the
permit terms, but there is no agreement, let alone an agreement between the transferee and
transferor, regarding the specific issues of “responsibility, coverage, and liability” as required by
§ 122.61(b)(2). For this additional reason, both WLPC permit transfer request forms do not
qualify as “automatic transfers” under the regulations.

b. The Permit Transfer Requests do not Qualify as “Minor Modifications”

Because the permit transfer requests do not qualify as “automatic transfers” under 40. C.F.R. §
122.61(b), the next question is whether they qualify as “minor modifications” under §§ 122.61(a)
and 122.63(d). As discussed above, to qualify as a “minor modification,” two elements must be
present. As with an automatic transfer, there must be a written agreement between the existing
and new permittees containing a specific date for transfer of permit responsibility, coverage, and
liability. ​Id. ​ As explained in the above section, no such agreement exists here. However, even if
there was such an agreement, to qualify as a “minor modification” DEQ must also determine that
no change in the permit is necessary (aside from the change in ownership or operational control).
Id.​ Here, it appears that DEQ did not make ​any​ determination findings, let alone determine that
“no other change in the permit is necessary.” ​Id. ​Further, as discussed below, it is likely that the
character of pollutants discharged from the site will change under new ownership.

c. It is Likely that the Character of Pollutants Discharged from the Site will Change
Under New Ownership

Aside from the lack of a date certain for the permit transfers and the lack of the required written
agreement between WLPC and Willamette Falls Paper Company, Inc., it is not clear to NEDC
that either an automatic transfer (40 C.F.R § 122.61(b)) or a transfer via minor modification (§
122.63(d)) is appropriate under these circumstances. This is because, for either of these transfers
to take place, DEQ must first determine that no other change in the permit is necessary. ​See ​40
C.F.R. §§ 122.61(b)(3), 122.63(d). In making this determination, a central concern will
necessarily be whether operations under new ownership will be similar to those under the
original permittee, and whether the amount and character of discharges at the site will be the
same.

DEQ’s permit transfer request form asks permittees to indicate whether the transfer of ownership
will “result in a change in the character of pollutants being discharged.” In the two NPDES
permit transfer requests at issue here, WLPC marked “no” in response to this question. But a
recent press release from Willamette Falls Paper Company, Inc. indicates that the new ownership
plans to significantly modify operations at the site, in a manner that could result in changes in the
type and character of pollutants discharged to the Willamette River.

The press release, dated June 26, 2019, makes clear that the new operator plans to use different
methods and materials for producing paper than those used by the previous owner. Specifically,
Willamette Falls Paper Company, Inc. “looks to integrate the use of non-traditional fiber sources
such as pulp from wheat straw, agricultural waste and the new farm crop of hemp into the
process.” If accurate, this strongly suggests that when these new materials are utilized at the site,
the resulting discharges from the facility will be of a different character than those discharged
under WLPC’s ownership. As one example, Permit No. 100976 currently contemplates
technology-based effluent limits for “wood fiber” pulp. ​See ​Permit Evaluation and Fact Sheet,
Permit No. 100976, at 10-11 (describing the BPT effluent limitations under 40 C.F.R. § 430.112
for the paper mill based exclusively on “wood fiber” pulp). Changes to the mill’s production
inputs, such as the new operator’s plan to include such additional inputs as “agricultural waste,”
are not currently contemplated by the mill’s NPDES permit. Despite the new owner’s
publicly-stated intent to move away from wood fiber production inputs, the permit transfer
request forms gave no indication of these plans. ​See ​Permit Transfer Requests at 6. In light of the
apparent inconsistency between the new owner’s public statements and the statements made to
DEQ in the permit transfer request forms, it would be inappropriate to process the permit transfer
requests as either “automatic transfers” or “minor modifications.” Instead, under these
circumstances the only option for DEQ is to modify or revoke the permit, and then reissue to the
new permittee after allowing for public notice and comment. 40 C.F.R.​ ​§ 122.61(a).

Discussion

The section of the Willamette River below Willamette Falls has drawn renewed attention in
recent years. The Willamette Falls Riverwalk project, designed to repurpose former mill
buildings below the falls to provide new public walkways and gathering spaces, is slated to break
ground early next year. This project will raise public awareness of this remarkable site, and
likely lead to increased water-based recreation in the area.

The area is also critical to ongoing efforts to protect and restore wild salmon and steelhead
populations in the Willamette Basin. NEDC has partnered with like-minded organizations to
advocate for these species, including through litigation regarding the U.S. Army Corps of
Engineers’ management of hydroelectric projects in the basin. The area immediately below
Willamette Falls, and the falls itself, represent an important part of these imperiled species’
journey. This section of the river deserves every protection granted under the Clean Water Act.

Given the public’s renewed focus on this section of the river, and NEDC’s ongoing advocacy for
improved water quality and on behalf of the river’s salmon and steelhead, we believe it is
essential that discharges from the WLPC/Willamette Falls Paper Company site be regulated
effectively. It appears that the facility is now operating under a wastewater permit that was
originally issued more than 25 years ago, and that does not account for proposed changes in
operations and materials used in the paper-making process.

With these thoughts in mind, we submit the following questions:

1. Did WLPC or Willamette Falls Paper Company, Inc. at any point provide DEQ with a
signed document including a ​specific date​ for transfer of permit coverage to
Willamette Falls Paper Company? If not, does DEQ believe that automatic transfer of
coverage, or a transfer via “minor modification,” was appropriate?

2. Did WLPC or Willamette Falls Paper Company, Inc. at any point provide DEQ with
an ​agreement​ between those two entities regarding “the transfer of permit
responsibility, coverage, and liability”? If not, does DEQ believe that automatic
 transfer of coverage, or a transfer via “minor modification,” was appropriate?

3. Did DEQ make a specific determination that no change in either NPDES permit was
necessary before the transfers were made? If so, what was the basis of this
determination? If such a determination was made, NEDC respectfully requests a copy
of the determination document and any supporting findings.

4. If Willamette Falls Paper Company, Inc. does begin (or has already begun) utilizing
new materials and processes at the facility, such as “agricultural waste,” does DEQ
have a strategy for assessing these new operations and determining whether a
modification and reissuance of either NPDES permit is appropriate?

NEDC is grateful for the opportunity to express these concerns about this important site on the
Willamette River. It would be greatly appreciated if you could provide answers to the above
questions by Friday, August 23.

Sincerely,

Jonah Sandford
Staff Attorney
Northwest Environmental Defense Center
10015 SW Terwilliger Blvd
Portland, OR 97219
jonah@nedc.org