November 27, 2019

Via Email Melody.J.White@usace.army.mil

U.S. Army Corps of Engineers
Regulatory Branch
P.O. Box 2946
Portland, Oregon 97208-2946

RE: Comments Opposing McCall Oil and Chemical Corporation Application for Permit
for Project Located at 5480 NW Front Avenue, Portland, Multnomah County,
Oregon and Request for Public Hearing (Corps No. NWP-1993-134-3)

On behalf of Willamette Riverkeeper, Columbia Riverkeeper, Center for Sustainable

Economy, Human Access Project, Neighbors for Clean Air, Northwest Environmental Defense
Center, Oregon Conservancy Foundation, Oregon Physicians for Social Responsibility, Portland
Audubon, and 350PDX (the “Commenters”), please consider the following comments regarding
the U.S. Army Corps of Engineers (the “Corps”) Public Notice of McCall Oil and Chemical
Corporation’s Application for Permit (Corps No. NWP-1993-134-3 and Oregon Department of
State Lands No. 62314) (the “Notice”). We also submit comments to the Oregon Department of
Environmental Quality on McCall’s application for permit, and incorporate those comments by
reference. See Attachment 1. There is great public interest in the proposed activity and there is a
need for a public hearing on this matter. The proposed work, as presented and without further
information, is contrary to the public interest and we urge the Corps to deny the work to the extent
it (1) requires further information to be gathered and disclosed to the public, and (2) directly or
indirectly supports, facilitates, or is linked, to any development or operation by Zenith Energy’s
(“Zenith”) neighboring oil terminal. One of the key problems with the Notice is that it does not
clearly state what the purpose and need is of the work. This information is essential for the Corps’
review of McCall’s Application under all of the applicable laws.

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 Before addressing the Notice, it is important to point out several deficiencies with respect
to McCall’s Application upon which the Corps is basing its review, the Application itself is based
on a 1993 nationwide permit that appears to have not been updated in the intervening 26 years. See
NWP-1993-134-3. Additionally, the permit McCall is using in support of its Application is
actually the wrong permit; it should not be using NWP-1993-134-3 but -35. See Attachment 1 at 3
(Oregon DEQ Comments). Furthermore, Portland Harbor Remedial Investigation Maps prepared
in conjunction with the designation of the Superfund Site confirm that the last time McCall
dredged in the vicinity of RM 8 was prior to 1997. See Attachment 2. At the very least, the Corps
should issue an individual permit to McCall in connection with this work; the use of an old
nationwide permit for a dredging project in a Superfund Site – a permit which predates the
establishment of the Superfund site - is wholly inappropriate. If McCall wants to proceed with this
project, it should reapply to the Corps for an individual permit and provide far more explanation
for how it proposes to protect the Willamette and Columbia Rivers, all of which must be subject to
public notice and comment. We hereby reserve our rights to provide additional or supplemental
comments on such an individual permit.

National Environmental Policy Act

The work and the Application must be analyzed for compliance with the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4321 and Council of Environmental Quality
regulations 40 C.F.R. § 1500 et seq. The Corps summarized its decision on whether to issue – or
not issue – the requested permit “will be based on an evaluation of the probable impact, including
cumulative impacts, of the described activity on the public interest.” Notice at 4. The Corps’
analysis here must include the preparation of an environmental impact statement (EIS).

NEPA requires federal agencies prepare a detailed EIS for “major Federal actions
significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). NEPA’s
primary goals are to ensure fully informed decision-making and to provide for public participation
in environmental analyses and decision-making. 40 C.F.R. § 1500.1(b), (c). NEPA is a procedural
statute that requires agencies to take a “hard look” at the environmental consequences of its
actions. NEPA also requires that agencies adequately consider and disclose direct and indirect
impacts of a project (40 C.F.R. § 1508.7), and cumulative effects (40 C.F.R. § 1508.8). Cumulative
effects result from the incremental impact of the proposed action when added to other past,
present, and reasonably foreseeable future actions. 40 C.F.R. § 1508.25(a).

One of the foundational components of NEPA analysis is the statement of a purpose and
need. 40 C.F.R. § 1502.13. Here, the only statement provided to the public is “to perform
maintenance dredging in the existing berth to re-establish previously authorized depths.” Notice at
1. What constitutes “previously authorized depths” is not defined; again, if the last time McCall
dredged in the vicinity, that was in 1997 which pre-dates the Superfund Site designation. See
Attachment 2. Without further information or NEPA analysis, the outdated permit and prior

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dredging authorization, and in light of ongoing other activities in the vicinity,1 the public has
serious questions as to the accuracy and transparency of McCall’s stated purpose. Without a
statement of the purpose and need of the project, and only generalized statements of the proposed
work that will span 10 years, the public’s ability to comment at this time is limited, and we request
a public hearing, release of documentation, and a robust environmental analysis.

Numerous factors here must be analyzed under NEPA before McCall’s Application can be
considered, and most of these factors the Corps has not yet identified. These factors range from
establishing baseline conditions, the impacts of the dredging, interim material staging, the
transportation of sediment off-site, the cumulative impacts of the work, involvement with Zenith’s
intentions to expand, and potential increased marine and land transportation activities.
Additionally, this work, and McCall’s activities as they relate to Zenith, are and have been “highly
controversial”, raising substantial questions as to whether the project may cause significant
degradation of some human environmental factor, or there is substantial dispute about the size,
nature, or effect of the major Federal action. 40 C.F.R § 1508.27(b)(4), (b)(5). Lastly, surely the
Corps is aware that the McCall Oil facility is located within the Cascadia subduction zone with the
potential for large magnitude earthquakes. McCall is located within a liquefaction zone, an area of
soil prone to liquifying, sinking, and expanding after an earthquake. With an earthquake, McCall’s
facilities could become unmoored and unhinged, spelling disaster for the Willamette and Columbia
Rivers. An EIS is merited here in order for the Corps to fully identify, disclose, and analyze all
factors prior to making a decision regarding the Application.

Rivers and Harbors Act of 1899, as amended

The work must be evaluated for its compliance with 33 U.S.C. § 403, the Rivers and
Harbors Act of 1899 as amended. The focus of the Rivers and Harbors Act is to prevent the
creation of obstructions to navigability. Here, the Corps must examine the proposed work’s affects
on navigable capacity of waters of the United States, including harbor lines and excavation or fill,
and whether such activity has been authorized. 33 U.S.C. § 403. Without a clear statement of the
work’s purpose and need, the Corps cannot conduct a Rivers and Harbors Act examination. Is the
work intended to assist McCall in accessing the Willamette and Columbia Rivers for its current
ongoing activities? Or, as we have been repeatedly asking, is it in fact connected to Zenith’s plans
to build a new pipeline system between its own neighboring facility and McCall’s dock to facilitate
marine shipments of biodiesel and methylene diphenyl diisocyanate (“MDI”)? If the latter, what
are the predicted changes in navigability in terms of numbers of vessels, and environmental
impacts? We believe this may be the first time since 1993 that McCall has applied for a permit; if
McCall’s application is linked to Zenith’s plans, the Corps must investigate and run the potential
impacts through all of the applicable analyses.

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See, e.g., Attachment 3 Land Use Review Application from JHI Engineering, File # LU 19-
254153 GW (Nov. 18, 2019) (showing Zenith new pipe proposal and McCall terminal and dock).

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 Under § 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, in determining whether or not
to issue a permit, the Corps is must also consider public interest factors and the work’s “probable
impacts, including cumulative impacts of the proposed activity and its intended use on the public
interest”, which necessarily include a wider range of factors than just the work’s effects on
navigability. 33 U.S.C. § 403; 33 C.F.R. § 320.4(a)(1); see also U.S. v. Alaska, 112 S.Ct. 1606,
1613-15 (1992). Indeed, the regulation requires that “all factors which may be relevant to the
proposal must be considered including the cumulative effects thereof…”. 33 C.F.R. § 320.4(a)(1).
These factors include “conservation, economics, aesthetics, general environmental concerns,
wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use,
navigation, shore erosion and accretion, recreation, water supply and conservation, water quality,
energy needs, safety, food and fiber production, mineral needs, considerations of property
ownership and, in general, the needs and welfare of the people.” Id. The Corps must also consider
ecological concerns. See U.S. v. Members of Estate of Boothby, 16 F.3d 19, 23 (D. P.R. 1994) (“In
recognition of the evolution of the Act, the Corps’ general policies for evaluating permit
applications… are dominated by ecological concerns.”).

Additionally, under 33 C.F.R. § 320.4(a)(2), every application must be considered for:

(i) The relative extent of the public and private need for the proposed structure or work:
(ii) Where there are unresolved conflicts as to resource use, the practicability of using
reasonable alternative locations and methods to accomplish the objective of the proposed
structure or work; and
(iii) The extent and permanence of the beneficial and/or detrimental effects which the
proposed structure or work is likely to have on the public and private uses to which the area
is suited.

Without full and robust consideration of the above factors, the Corps cannot accurately determine
the type and amount of compensatory mitigation necessary to offset environmental losses from the
proposed project.

Lastly, the Notice states that the Corps did not verify the location of the ordinary high
water mark prior to issuing the Notice, and if the Corps determines the water boundaries are
“substantially inaccurate” a new public notice may be issued. Notice at 1. First, to determine
navigable waters for River and Harbors Act compliance evaluation, the Corps must know the
ordinary high water mark of the project and vicinity. Without this basic foundational information,
the Corps cannot demonstrate compliance with the Rivers and Harbors Act, and any assertion of
compliance with the Rivers and Harbors Act is premature. Second, the Corps does not offer any
parameters for the “substantially inaccurate” standard it elected to apply, what it means in this
context, and how it will assess the degree of accuracy of its own determination. This is information
that the Corps really should have already ascertained prior to issuing the Notice.

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Clean Water Act § 404(b)(1) Guidelines

Under 33 U.S.C. § 1344, a discharger of dredged or fill material must obtain a permit
unless the activity is exempt. Here, the Corps plans on using § 404(b)(1) Guidelines (40 C.F.R. §
230.1. et seq.) as the substantive criteria to evaluate discharges of dredged or fill materials into
waters of the United States, and the Corps will evaluate the fill material source prior to the start of
construction. Notice at 3. The Corps must fully identify and analyze the purpose of McCall’s
Application, and support its approach so that if the work is related to Zenith’s expansion efforts,
the Corps undertakes the proper § 404 examination. Currently, it does not appear that the Corps
has the majority of information it would require to make a determination.

The Guidelines’ purpose is “to restore and maintain the chemical, physical, and biological
integrity of waters of the United States through the control of discharges of dredged or fill
material,” and to avoid an “irreversible loss of valuable aquatic resources.” 40 C.F.R. § 230.1(a),
(d). In order to make any of the factual determinations required under 40 C.F.R. § 230.11,
including the potential short-term or long-terms effects, the Corps must have more information.
The Notice does not disclose sufficient information to address the factual determinations in the
regulations; in fact, the Notice clearly states it does not have basic information and activities
ranging from sediment sampling to species identification will occur in the future. To make a
finding of noncompliance or compliance with the restrictions on discharges, the Corps will need
the necessary information to satisfy 40 C.F.R. § 230.1 et seq., including the aquatic system, human
use, testing and evaluation, and mitigation provisions. This data must also be made available to the
public.

Essential Fish Habitat

The Notice states that the Corps’ preliminary review indicates the proposed activity would
adversely affect essential fish habitat at the project activity location or in the vicinity. Notice at 4.
We believe the work area and vicinity may be habitat for several species of fish, including for
example salmon, groundfish, crabs, clams, and mussels. The Corps provides no further information
to support its conclusion, and without any further information, the public is unable to provide
comments on this issue. In particular the public is without information regarding, for example, the
special attributes of the project location or vicinity that make it essential fish habitat, whether there
are Habitat Areas of Particular Concern (HAPCs) affected by the project, the fish and marine
species dependent on that habitat, the location(s) at issue, how the project will affect the habitat,
whether and how the project will interfere with fish and marine species’ functions and behaviors
and life stages, how the Corps will protect the area and mitigate any impacts. These are all
foundational, basic issues, that the Corps must address. If the Corps is already aware or in
possession of this information, it should release it to the public as soon as possible. Refusal to
release this information places the public at a distinct disadvantage, prejudicing our rights to be as
fully informed as the Corps in this process.

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 The Corps states it will initiate consultation with the National Marine Fisheries Service
(NMFS), and that it will complete the required consultation prior to finalizing a permit decision.
Id. As such, all coordination, consultation, recommendation, and response materials must be made
available to public and the permit decision must be subject to reasonable public notice and
comment prior to the permit becoming final. See 16 U.S.C. § 1885(b)(2); 50 C.F.R. § 600.905.
Moreover, the consultation approach selected must be appropriate for the situation. 50 C.F.R. §
600.920(a)(2). Again, at present, the public is without information to assess or comment on the
Corps’ proposed action’s affects on essential fish habitats.

Endangered Species Act

Similar to the Corps’ approach to Essential Fish Habitat, in the Notice it simply states that
the Corps’ preliminary review indicates the described activity may affect endangered or threatened
species, or adversely modify critical habitat. And, similar to the Essential Fish Habitat statement,
the Corps does so without any additional information being provided to the public upon which to
comment. Notice at 3. The Corps does not identify any particular species, how the project may
affect protected (or proposed to be protected) species, the location of any designated critical
habitat. The Corps states it will initiate consultation with the Fish and Wildlife Service, and that it
will complete the required consultation prior to finalizing a permit decision. Id. As such, all
coordination, consultation, recommendation, and response materials must be made available to
public and the permit decision must be subject to reasonable public notice and comment prior to
the permit becoming final. See 16 U.S.C. 1536. Under the ESA, the Corps must insure that the
project “is not likely to jeopardize the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of habitat of such species…”. 16 U.S.C.
§ 1536(a)(2). If the Corps is already aware or in possession of this information, it should release it
to the public as soon as possible. Refusal to release this information places the public at a distinct
disadvantage, prejudicing our rights to be as fully informed as the Corps in this process.

Superfund

The work is entirely within the Portland Harbor Superfund Site. Notice at 2. The Notice
states that the Corps will coordinate with the U.S. Environmental Protection Agency (EPA), and
the Notice very generally outlines that sediment sampling has occurred, but provides no further
information other than the material is unsuitable for confined, aquatic disposal and exposure.
Future sediment testing prior to each maintenance dredging event may or may not be required;
such a decision would be the result of coordination between McCall, the Corps, and the
interagency Portland Sediment Evaluation Team. Notice at 2. We advocate for regular sampling in
light of the proposed sediment disturbances by this work, and that the sampling events occur in
close temporal proximity to proposed dredging events. Because the work proposed sediment
disturbance, we also advocate for sampling to monitor the disturbances’ effects on the water, fish,
surface sediments, the river, and any movement of contaminants as a result of the work.

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Conclusion

In conclusion, we urge the Corps to gather, disclose, and examine more information prior
to proceeding with substantively reviewing McCall’s Application. We also urge the Corps to
review McCall’s Application in conjunction with other related activities discussed herein and in
the comments to the Oregon DEQ (Attachment 1), and to require an individual permit for this
activity. Finally, we urge the Corps to curb McCall’s permitted activities to the extent they relate
to Zenith’s plan to transport biodiesel and MDI on the Willamette and Columbia Rivers. We
further request a public hearing on the issues raised in the Corps’ Notice and McCall’s
Application.

Sincerely,

s/ Elisabeth Holmes
Elisabeth Holmes, Staff Attorney
Willamette Riverkeeper

Erin Saylor, Staff Attorney

Columbia Riverkeeper

Enclosures: Attachment 1: Comments to Oregon DEQ (with attachments A - D)

Attachment 2: Portland Harbor Remedial Investigation Map
Attachment 3: Zenith Energy Engineering Maps