Water fight

Discharge permits mark the latest tussle at former Smurfit site



Inside the former Smurfit-Stone Container Corp site, concrete footings rise up into the air not far from piles of rubble and red “Danger” tape strewn on the ground. More than four years after the Smurfit-Stone site shuttered, and 22 months after the Environmental Protection Agency documented extensive contamination at the former paper mill, the facility sits vacant.

The inactivity masks a significant amount of behind-the-scenes legal wrangling as state regulators propose authorizing the site’s new owners, M2 Green Redevelopment, to continue polluting the neighboring Clark Fork at the same level allowed under Smurfit-Stone’s operation. The decision is drawing considerable opposition from local and tribal officials who don’t understand why the state would continue to endanger the river for a business with no clear direction.

“This doesn’t make sense,” says Missoula Valley Water Quality District Supervisor Peter Nielsen.

In 2011, M2 Green, a subsidiary of the Green Investment Group Inc., purchased the shuttered paper mill in Frenchtown, stating its intention to erect a wind turbine manufacturing operation on the site. GIGI had purchased several other shuttered Smurfit properties throughout the nation and in Canada and, in the months following its local announcement, GIGI garnered criticism for failing to fulfill development promises at other defunct paper mills in Illinois and Ohio. GIGI’s legal challenges, including at least four lawsuits alleging breach of contract and failure to pay contractors, raised additional questions about its solvency.

Uncertainty about the landowners’ plans only grew in March, when a newly named millsite redevelopment director announced a new proposal at a community meeting. Steve Malsam, a Seattle-based developer who loaned money to M2 Green to purchase the Frenchtown mill, explained that property owners now envision “a small city”—not a wind turbine factory—at the site.

With that backdrop, the Montana Department of Environmental Quality approved M2 Green’s application to renew the former Smurfit operation’s wastewater discharge permit. DEQ’s Final Notice of Decision sets wastewater discharge standards at limits that were in effect when the paper mill was running at full steam.
Nielsen notes that, among the problems with DEQ’s decision, is the discharge levels could apply to nearly any hypothetical operation at the site.

“It could be almost anything that’s high-strength wastewater,” Nielsen says. “In terms of industrial activity, or factory farms, you name it—or another city.”

On April 11, Missoula County formally appealed DEQ’s decision, arguing that the agency made legal and factual errors prior to signing off on the discharge permit. The county argues DEQ has “exhibited a clearly unwarranted exercise of discretion.”

The Confederated Salish and Kootenai Tribes and the Clark Fork Coalition are also protesting. Each requests an oversight body, the Montana Board of Environmental Review, scrutinize the agency’s findings. The county, Clark Fork Coalition and the tribes each contend the DEQ is violating its own rules and federal law.

Among the county’s primary qualms with DEQ’s proposed discharge limits, Nielsen says, is the cap it set on nitrogen and phosphorous. These nutrients feed algae, which consume oxygen and ultimately harm fish. The appellants add that DEQ’s nutrient cap is twice the average load emitted from the Missoula Wastewater Treatment Plant.

“There is only so much nitrogen and phosphorous that the river can absorb before it becomes unacceptably polluted,” says Chris Brick from the Clark Fork Coalition.

Local and tribal officials warn the Clark Fork could suffer if the state allows the new owners of the former Smurfit Stone site to again pollute the river.
  • Cathrine Walters
  • Local and tribal officials warn the Clark Fork could suffer if the state allows the new owners of the former Smurfit Stone site to again pollute the river.

DEQ declined to comment on the discharge permit citing the pending appeal. M2 Green also declined comment.

In the local scientific community, there’s already a significant amount of concern about how historic operations at the former Smurfit site have impacted the waterway and aquatic life. In October, Montana Fish, Wildlife and Parks issued a fish consumption advisory after finding rainbow trout and northern pike collected from a 105-mile stretch of the Clark Fork surrounding the Smurfit site were contaminated with dioxins, furans and polychlorinated biphenyls, or PCBs—or, as the advisory put it, “contaminants commonly associated with the pulp and paper mill industry.”

Those findings prompted the state to warn locals not to eat pike caught on the Clark Fork between the Bitterroot and Flathead confluences. They said rainbow trout harvested from that area should compose less than four meals per month.

Health officials don’t know how extensive the pollution is along this stretch of the Clark Fork. Among the reasons for the lack of information is the fact that fish sampling is expensive. Nielsen says a Superfund designation would enable scientists to do additional testing, as well as remediate the property. With the support of city, county, tribal and state officials, the EPA proposed adding the site to the Superfund program’s National Priorities List in May 2013. The earliest it could be finalized for the NPL would be this fall.

Without a Superfund designation it will be tough, if not impossible, to secure the resources needed to further study the site. When Smurfit-Stone sold the mill, the paper manufacturer passed on all environmental liability to M2 Green. Soon after the transaction, and about a year after emerging from Chapter 11 bankruptcy protection, Smurfit-Stone was acquired by RockTenn, one of the largest paper and packaging manufacturers in North America. A Superfund designation would allow the federal government to force RockTenn and and all other former mill owners or their corporate heirs to pay for the cleanup.

As for the discharge permit, the county hopes to have DEQ’s decision on the review by the end of the year. Nielsen says from his perspective it’s easy to see that the agency badly erred when moving to transfer the permit to M2 Green.

“Basically it’s treating (the permit) as a property right,” Nielsen says. “When the permit goes away, you don’t just get to sell it to somebody else. It’s not a marketable thing to be able to pollute our water. That’s just fundamentally the problem.”

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