SPECIAL REPORT: State officials rarely intervened and never stopped the port as it dumped hundreds of tons of excess nitrogen over a critical groundwater area

By Alex Baumhardt / Oregon Capital Chronicle / May 19, 2022

The state’s chief environmental agency knowingly let the Port of Morrow pollute year after year, contributing to drinking water contamination for thousands, an investigation by the Capital Chronicle showed.

To protect jobs, the state Department of Environmental Quality addressed the industrial pollution with deals instead of enforcement. 

Agency officials accepted the port’s plans over the years that promised correction but were seldom followed. 

Front-line DEQ employees tasked with monitoring the port encountered unexplained directives that gave reprieve after reprieve to the port, identified as one source in the region of nitrogen pollution. The port pumps nitrogen-laced water from its industrial complex in Boardman to farm fields, where it can convert into nitrate and seep into groundwater.

The people endangered by the environmental mismanagement are mostly low-income families with unsafe wells. They hold little power and have few allies to counter the political might of port authorities.

DEQ directors over the years had the legal authority to suspend or revoke the port’s wastewater permit over repeated violations. They didn’t, the Capital Chronicle found.

DEQ officials could have mandated that the port reduce nitrogen levels in the wastewater before spreading it on farms and over groundwater aquifers. They did not.

And the agency’s leaders could have used stiff penalties to compel the Port of Morrow to comply. For years, they imposed none.

A combination of budget and staff cuts and powerful political and economic forces account for DEQ’s weak enforcement, according to hundreds of pages of public records and dozens of interviews.

As a result, hundreds of tons of nitrogen that should never have made it out of the port’s industrial operation flowed year after year onto farmland and onto one of the most nitrate-polluted basins in Oregon – the Lower Umatilla Groundwater Basin.

More than 30 years ago, authorities decided degradation of that water supply had to be arrested. The DEQ in 1997 joined in a regional plan to cut that pollution, with the agency warning that “mandatory” actions might be necessary.

The groundwater contamination instead worsened.

Broken agreements

The port can only dispose of its nitrogen-rich wastewater under conditions set by the DEQ.

When the port’s permit to do so expired in 2006, the DEQ did what it often does and advised the Port of Morrow to carry on until the state could work up a new permit.

In the ensuing years, the port violated its permit by dumping more polluted water than was legally allowed.

State regulators caught on in 2011, when port officials sought permission to spread even more of the nitrogen-rich wastewater onto area farmland.

Duane Smith, a DEQ water quality specialist assigned to eastern Oregon, discovered the port had violated its permit 42 times from 2007 through 2009, resulting in thousands of pounds of excess nitrogen being spread over fields on three farms. Agency officials didn’t impose penalties as allowed under the law, but instead negotiated a “mutual order and agreement” with the port. 

The purpose of such a deal is to give both the DEQ and the port legal cover against lawsuits over the violations, according to Smith, who retired from the agency in 2019.

Such documents “are interim agreements that someone promises to do something and if you do that we’ll hold off on enforcement actions,” he said.  

In the agreement signed May 26, 2011, by Gary Neal, the port’s then-executive director, DEQ settled for the port’s promise to create a long-term plan to deal with wastewater during the winter months. The port continued to produce millions of gallons of wastewater from November to February that had to go somewhere, but farm fields were often frozen or had too few crops to absorb the nitrogen-loaded water. 

The port also agreed to submit wastewater monitoring reports more frequently to DEQ. The objective was to get the port to obey the restrictions for its wastewater disposal.

One provision accepted by the port was that the DEQ could fine the port up to $250 a day if it detected new violations.

Budget cuts and staff reductions 

But that agreement took effect as DEQ was weakened by budget cuts and left in a poorer position to enforce terms of the agreement to protect the groundwater. 

Legislators in 2011 reduced the department’s $52 million water quality program by nearly $6 million, resulting in the loss of 37 positions. The agency’s Pendleton office lost two jobs and testing of DEQ’s network of wells in the region was cut back.

To this day, DEQ hasn’t returned to full strength.

In an email, Laura Gleim, a public affairs specialist at DEQ, wrote that since 2011, “DEQ has not recovered those jobs and has been backfilling with other program staff as allowed.” 

According to the department’s budget requests, DEQ has proposed for years adding water quality staff, including in eastern Oregon. The requests were turned down by either the governor or the Legislature.

In the meantime, despite its legal promise to clean up, the port carried on polluting. 

“When they didn’t meet the timelines there was little support for holding their feet to the fire,” Smith said. 

Violations nearly every winter

Smith said that port officials struggled nearly every winter with disposing of the wastewater flowing from its industrial clients. Miff Devin, the port’s water specialist, said in an email that such problems didn’t arise until 2017, and that port officials only last year learned the subsequent discharges weren’t allowed.

According to Smith, Devin would alert him if the port’s holding ponds were full and say that he needed to release more water. Not doing so would result in the ponds overflowing, ultimately destroying them.  

“I said, ‘How can I stop you? If you don’t irrigate, you lose a pond,’” Smith recounted. “Even though they knew they were in violation and knew what was coming. I gave them what advice I could.”

Smith said he would help Devin and others identify fields where dumping excess nitrogen would have the least impact.

“They knew they were in violation. I never excused a violation,” Smith said.

Smith advised Devin in one 2019 email how to proceed.

“It would be best to plan on a special segment in the report to identify those fields that were irrigated in excess of the winter application limits,” Smith wrote. “I will leave it to you folks to propose a plan that minimizes the impact of movement beyond the root zone.”

Smith said he worked largely alone, in an understaffed office of an understaffed agency, and he described being in a tough situation politically. Half of the jobs in Morrow County are for the port and its industrial customers, according to the port’s recent economic analysis.

Smith said he suggested to DEQ leaders that the agency either put a moratorium on port expansion until it could get its wastewater under control or stop the port from releasing any water in the winter.

“The Port of Morrow was a big commercial operation and it was difficult to get DEQ management to take a stiff position,” he said.

Smith said he had to be smart enough not to be “asking for outrageous things that you know are never going to be approved.” He could not be seen as “curtailing business,” he said. 

“You can’t put people out of work,” Smith said. “You have to go out of your way to get people to comply through agreements, rather than monetary penalties and not talking to them.”

He said he was told year after year by managers in DEQ’s water quality program and eastern region office to work with the port on complying with wastewater requirements.

But not long after agreeing in 2011 to limit pollution, the port again was found to be spreading excess wastewater to farm fields.

Smith later documented the violations, which occurred from 2012 through 2014. He categorized the port’s actions as the most severe environmental violation – a Class I. That means the violation carries “high probability for significant, direct environmental harm” which could warrant DEQ’s maximum fine of $25,000 per day.

Smith was surprised at the fine ultimately set by the agency’s Office of Compliance and Enforcement.

“I thought it was going to be a lot higher than what it turned out to be,” he said. “It seemed to me that it could be as much as a million.”

The port authority was fined $129,000 and paid. Soon, the pollution continued.

A new deal

By 2017, the Port of Morrow had been operating on its expired permit for 11 years. Smith and DEQ authorities finally acted to renew it, triggering another review of port records that detected still more pollution.

According to Oregon law, “If DEQ determines that a permittee is in non-compliance with the terms of its permit, submitted false information in the application or other required documentation, or is in violation of any applicable law, the director may revoke the permit.”

But no DEQ director has ever revoked, suspended or chosen not to renew a water permit, according to Harry Esteve, communications manager at the department. 

And the records show that DEQ leaders never ordered the port to stop or suspend operations to cease the flow of excessive nitrogen onto surrounding lands.

Instead, they settled for one more mutual order and agreement from the port in 2017 that let the Boardman operation off the hook for any fines and kept its factories churning out contaminated water.

Under the new deal signed in the fall of 2017, DEQ expected the port to build a new storage pond and limit where it would spread its wastewater in winter. It also stipulated that the water could only be applied to crops that could pull nitrogen from deep in the soil so it wouldn’t get into the groundwater.

“So if you grew a crop, and it didn’t remove the nitrogen loads, like garlic or some of those shallow-rooted crops, that wasn’t eligible,” Smith said.

The effect of that crop selection would reduce the possibility of nitrate leaching into the groundwater.

DEQ officials hoped these restrictions would compel the port to invest in water storage and treatment that would remove nitrogen before the wastewater left port operations, DEQ records show. 

The port agreed to invest in anaerobic digesters – equipment costing tens of millions of dollars that could store water and remove some nitrogen before it was piped out of the Boardman complex.

The new 17-page agreement also stiffened possible penalties, boosting the daily fine per violation from $250 to $1,200.

Neal signed off for the port and Sarah Wheeler, acting manager of DEQ’s Office of Compliance and Enforcement, signed for the agency.

Smith said port officials resisted the state regulators, arguing that the excess nitrogen wasn’t reaching the groundwater, and that DEQ analysts were too conservative in calculating how much nitrogen the crops could absorb.

“They hired different consultants to refute our information. Battles would go back and forth,” he said.

The agency had been requiring that the port and its consultants test wells downstream from fields where the wastewater was applied. 

Smith said such testing showed “elevated nitrate levels that have gotten worse since they started applying.”

The backdrop of a critical groundwater area

Through it all, records reveal, there seemed little sense of urgency among DEQ officials to stop the port’s pollution.

In 1989, the Legislature mandated DEQ to team up with state and local agencies to better protect groundwater across the state.

Studies in the early 1990s found that water in one-fourth the 200-plus wells tested by DEQ in the Lower Umatilla Groundwater Basin contained enough nitrate to violate federal safe drinking water standards and trigger state action. That research traced most of the contamination to agriculture – fertilizer runoff from irrigated crops and waste from large cattle feeding operations. Industrial operations such as the food processors at the port’s Boardman complex also were identified as adding to the problem.

Studies came to a head in 1997, when evidence of that contamination was so compelling that a committee including government and private interests recommended immediate action. The hope was to see improvement within about a decade, by 2009.

Among the recommendations was that food processors reduce their wastewater and cut the nitrogen content of that wastewater before it was pumped to area farms. The groundwater committee also recommended that facilities develop better methods to measure the amount of nitrogen from wastewater that was absorbed by crops and how much was leaching into the soil and groundwater as nitrate. 

“If after a scheduled evaluation point, DEQ determines that the voluntary approach is not effective, then mandatory requirements may become necessary,” the 1997 report said.

Nine years later, the results weren’t encouraging.

“Nitrate results compared between years 1992 and 2003 at ~130 wells: concentrations are increasing at most wells,” according to 2006 meeting minutes of the committee pursuing reforms.

Another 14 years later, in 2020, the committee updated its action plan with sobering findings.

In more than half of the wells DEQ had been testing since the early 1990s, the nitrate levels had gone up. Just about one-third of the wells had nitrate levels that were decreasing. 

“Nitrate concentrations are going up more than they are going down,” the 2020 report said.

The average concentration of nitrate in a third of the wells was above the EPA’s threshold of 10 parts per million, and some were as high as 76 parts per million. 

The committee again planned how to reduce nitrate levels, outlining voluntary steps that could be taken. The report recommended that the port and the food processors continue studying best practices for land application of the water and to “continue to follow their permit conditions and requirements and meet or exceed all requirements.”

DEQ made no move to invoke the mandatory changes it had raised as a prospect 30 years earlier.

Instead, records and interviews establish, they left the polluters to act voluntarily – and little happened.

More than 1,100 violations

Meanwhile, Port of Morrow officials had stalled on the construction of the digesters proposed in 2017 and none were operational. In September 2020, Miff Devin, the port’s water specialist, asked the DEQ for permission to expand the acreage where wastewater could be dumped.

By then, a new team was handling permit reviews in eastern Oregon. Chad Gubala, a hydrologist and chemist, had joined the agency a year earlier to manage DEQ’s water quality program out of the Pendleton office. He was joined by Justin Sterger, an environmental scientist who came aboard in January 2019 as a senior water quality permit writer, based in Bend.

Sterger had the task of viewing the port’s latest request to amend its permit. That involved, in part, reviewing years of compliance reports submitted to DEQ since its permit was renewed in 2017. 

In all, Sterger documented port violations over three years that resulted in 165 tons of excess nitrogen being spread. He and Gubala prepared to alert the Port of Morrow to the findings and potential enforcement.

On June 9, 2021, Sterger and Gubala got an internal email marked “URGENT” that said the agency’s deputy director, Leah Feldon, wanted them to hold up issuing the notice to the port. 

The message arrived too late.

Sterger had already sent the 15-page “pre-enforcement notice” to Ryan Neal, who had succeeded his father as executive director of the port.

Sterger had ranked the violations as Class I, the most severe. 

As a fine was being evaluated, DEQ’s Office of Compliance and Enforcement asked Sterger to review not just monthly, but daily wastewater discharge data. That’s when he found the port had violated its permit more than 1,100 times since 2018.

Gubala, who left the agency earlier this year, told the Capital Chronicle that he, Sterger and the employees that worked with them at DEQ’s Office of Compliance and Enforcement figured a maximum $25,000 per day of violation could be coming, resulting in a nearly $29 million fine.

“That’s when things really got more of the attention of upper management of Leah and Richard, on this matter,” Gubala said, referring to the agency’s deputy director and to Richard Whitman, who had become director in 2017.

But as regulators were considering their enforcement action, DEQ officials faced political pressures as they moved on a seperate track to impose new operating limits on the Port of Morrow.

Permit restrictions alarm port, others

By the fall of 2021, DEQ was considering an unprecedented action and what Duane Smith had proposed for years but was told was impossible. DEQ is now considering banning the Port of Morrow from dumping wastewater during the winter unless nitrogen levels are low enough to meet federal drinking water standards. 

Before acting, Whitman reached out to brief the state legislator representing the Boardman area – state Rep. Greg Smith, R-Heppner.

Whitman had good reason to contact Smith, who once worked for the Port of Morrow.

Smith has a seat on the Legislature’s powerful budget committee, overseeing DEQ’s budget.

Smith has used his committee position to win millions in special state funding for the Port of Morrow. But he had personal financial ties as well.

He is paid $144,812 by the Columbia Development Authority, which is redeveloping a former chemical munitions depot near Boardman. The port is a partner in that entity. The port also helped establish an economic nonprofit that now pays Smith’s private company $100,000 a year.

In a recent interview, Smith said he was unaware of DEQ’s restrictive new conditions for the port until earlier this year. DEQ records contradict that.

Emails show that Smith stepped in to stall DEQ’s new conditions for the port.

“It is my understanding the Port of Morrow is in anticipation of a letter from your office,” Smith wrote in an email to Whitman on Nov. 8. “I would respectfully request that you hold off on this until our meeting tomorrow morning.”

This was the day the port would be receiving its permit modifications from DEQ.

The paperwork was sent Nov. 8 despite Smith’s request, and the agenda for Smith’s meeting with the DEQ boss was set for the following day. Topics included “POM permitting” and “drinking water issues.”

The same day as that meeting, Smith’s staff pressed Shannon Davis, DEQ’s regional administrator in Pendleton, to separately meet with the legislator. 

“Rep. Smith has a very difficult schedule for the next week and a half. However, he was hoping you could meet in person with himself and the Port of Morrow” the next day – at the port’s offices.

Davis wrote back that she couldn’t meet but assured Smith’s staff that the port could immediately request an extension of its November deadline to address the new permit conditions.

Extensions were granted twice while the DEQ put the finishing touches on the final enforcement notice. 

Whitman and Smith would meet at least once more in person and once more over Zoom before Jan. 10, when DEQ levied a fine of nearly $1.3 million to the port for years of violating environmental restrictions.

“I would really like to talk sometime today,” Smith emailed Whitman that day. 

The two men did talk about the impending enforcement against the port, according to Smith.

The following day, DEQ went public with the fine, declaring in a statement that the port’s conduct was “reckless” because it had “intentionally applied” excessive amounts of nitrogen into a critical groundwater area. 

The record fine

That $1.3 million penalty is the largest DEQ has imposed for violating a state water permit, according to the agency’s enforcement database.

But DEQ could have gone further.

According to the notice issued by the agency’s Office of Compliance and Enforcement, the port could have received a fine of up to $18,600 for each day it violated the permit.

That would have totaled more than $21.6 million. Like Duane Smith before him, Gubala was surprised at how low the final penalty was. He said that he thought the Office of Compliance and Enforcement had “concluded that the fine needed to be of a significant size for them to actually take it seriously, and to actually prompt them into spending money and spending time on treatment rather than just paying the ticket.”

But when Kieran O’Donnell, manager at the Office of Compliance and Enforcement got back to Gubala and Sterger, he told them, “‘Well, what I was able to get on this was 1.2 million,’” Gubala recalled. 

“We were disappointed at that size, but it was explained to us that, you know, the record fine for DEQ had actually just hit the papers,” Gubala said. 

That was in October 2021, when a $2.1 million fine was assessed on Malarkey Roofing for violating its air quality permit.

Whitman said in a recent interview that the agency wanted to make a point with the Port of Morrow with the size of the fine, which the port is now contesting. He said he had been briefed on the port’s permitting issues in 2017 and “things then went pretty quiet for a while.”

But the 2020 report showing that nitrate levels continued to rise in the area caught his attention. 

He said he got more involved because of “hearing both from staff about noncompliance, and more attention because of seeing the conditions go in the wrong direction.”

“I was pretty unhappy, to be frank, when I heard about some of the levels of noncompliance on this permit,” said Whitman.

Meantime, outside influences exerted pressure on DEQ to relent on the tougher restrictions the agency was proposing.

The DEQ granted meetings to consider their pitches. One came from Jake Madison, a Boardman-area farmer who was getting wastewater from the port to irrigate his crops. DEQ employees sat through his Powerpoint presentation on why wastewater was good for agriculture. His slides made no reference to the impacts on drinking water. 

Gubala said at the end of the presentation, Madison asked that DEQ give the port six more months to review the proposed permit instead of advancing towards putting it in place.

“Jake’s not an agent of the Port of Morrow, he was requesting this verbally, none of this was basically official, or I can’t speak to the legalities of it, but it was certainly highly irregular,” Gubala said. Among those invited to a January meeting scheduled by the port with DEQ titled “DEQ Permit Review Meeting” were Madison and Dawson Quinton, a legislative aide to Smith. Gubala said in the end Madison was not allowed to come, but Quinton was there. Gubala said the port mostly discussed getting its new digester system up and running.

The process was straying from protocol, Gubala said, and such presentations should have been put into the public record, when DEQ puts proposed permit restrictions into a public comment period. Gubala was so concerned that he independently consulted attorneys at the Oregon Department of Justice. He didn’t want to disclose what was discussed with them.

Sharing the prosperity message

And before the public could have its say, the board of the Port of Morrow scheduled an unusual joint session with the Morrow County Commission. The purpose seemed to be to get local officials lined up behind the port’s drive to modify the restrictions, to speak in common terms for the port. They met April 13, at the port, two days before DEQ was going to open the port’s permit modifications to public comment.

Once again Madison, the Echo farmer, took a leading role.

“The whole point of this conversation is a regional approach to DEQ, to say you have to help us do better, and by you helping us do better, you don’t write stupid permits that we can’t comply with,” Madison told the group.

He said he and other farmers who receive the port’s wastewater see themselves as solutions to the area’s nitrate problem.

The group got advice on how to promote the port’s cause from Len Bergstein, a political consultant from Portland with Northwest Strategies who joined the meeting over Zoom.

Bergstein was hired by the port to help with its communications strategy to keep the message consistent: the port is working in the best interests of the region both environmentally and economically, and that it is working with DEQ to find solutions to the groundwater nitrate problem.

Bergstein said at the April meeting that he was “going to try and line people up so that in fact DEQ understands that the regulations that they’re about to release have a significant impact on the shared prosperity and success story that the community has had over all these years with the growth of high value crops.”

The conversation eventually turned to those not widely represented at the meeting – people who rely on the tainted groundwater for their home water. Many people with private wells in the area now rely on bottled water for cooking and drinking.

Those meeting that day suggested yet more well testing. They also suggested seeking money to provide homeowners with filtering systems to screen out the nitrate.

No one volunteered the port, the farmers, the food processors or any of the polluters to help fund such a project.

Instead, the group agreed to turn to the state and federal government for money so thousands could again safely drink water from their taps.

The request is pending.

FEATURED IMAGE: A pivot sits in a crop of canola on land owned by Madison Farms near Echo. Along with water from the Columbia River, the farm sprays nitrogen-rich water from processing plants at the Port of Morrow. (Kathy Aney/Oregon Capital Chronicle)

This story was developed in collaboration with the Catalyst Journalism Project at the University of Oregon School of Journalism and Communication. Catalyst brings together investigative reporting and solutions journalism to spark action and response to Oregon’s most perplexing issues. To learn more visit https://catalystjournalism.uoregon.edu or follow the project on Twitter @UO_catalyst.

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Les Zaitz for questions: info@oregoncapitalchronicle.com. Follow Oregon Capital Chronicle on Facebook and Twitter.