NCA BLOG

ESCO Neighborhood Advisory Committee Approves Chapman Air Monitoring Plan

In a vote of 5-1, ESCO Neighborhood Advisory Committee members approved the Chapman monitoring plan at the last meeting held October 27th.  This project was a condition of the Good Neighbor Agreement (GNA) signed in 2011 with ESCO. The company committed  to providing $25,000 to monitor for metals at Chapman School. This particular GNA item was highly contentious, one insisted on only by former Northwest Neighborhood Association President Ron Walters. He does not serve on the NAC.

The NAC meets quarterly, and NCA received DEQ’s approval of the plan and the City’s approval of the permit just last week, clearing the plan for a vote by the committee at this previously scheduled meeting.

Air monitoring can be difficult and expensive, and $25K is a relatively small amount of money. To put it in perspective, the Oregon Department of Environmental Quality secured $375,000 to run a single toxics monitor in North Portland for 12 months. And a NW neighborhood monitoring project run by NWDA Health and Environment Committee over 10 years ago cost about $40K. Ironically, ESCO staff have questioned the budget, but reiterated the company will not provide more funds to support more expensive research.

Neighbors for Clean Air took the lead on developing a protocol.  We turned to leading air quality advocates, Global Community Monitor (GCM), for guidance on technology that is affordable, reliable and from which we can expect defensible results.  In addition we have secured a partnership with Dr. Linda George, an atmospheric chemist in Portland State University’s Environmental Science Department, who has conducted research on Nitrogen Dioxide levels – often a surrogate for fuel combustion – in the Portland Metro area (see: mrao env pollution 2014).  GCM has helped us identify and procure MiniVol monitoring devices and a local lab that can do the analysis. Dr. George will lead a team of students who will conduct the actual monitoring sampling and records. In addition, GCM’s team will travel to Portland to assist with installation and train the students in proper sampling technique.

This was no easy feat and yesterday’s approval marks nearly 12 months of NCA staff time (thank you to the amazing John Krallman!) sunk into the development of the plan, including the very rigorous process of meeting ESCO’s only two stipulations: that the plan must be approved by the Department of Environmental Quality, and the monitors must be placed at Chapman school. DEQ’s approval took over 9 months, with considerable accommodations required so as to meet the Quality Assurance standards of the testing protocol and handling of the samples. NCA was required to acquire a Research Permit from the City of Portland to allow installation of the monitoring devices on the fence surrounding the tennis courts at Chapman School.

The monitoring plan calls for the analysis of 40 toxic substances, including manganese, which was the biggest risk driver in our neighborhood identified both by DEQ’s Portland Air Toxics Solutions emissions data and the USA Today Smokestack Effect Study and for which ESCO was named as the most significant source. These monitors utilize a low volume intake that deposits onto a removable filter, acting much like a mechanical lung.  Filters are removed and sent to the lab for analysis. The laboratory testing methodology used, X-ray fluorescence (XRF), can test for forty heavy metals in one test.  In addition to identifying individual toxics, the samples will also be weighed to obtain a measurement of the total fine particulates that are in the ambient air, known as PM 2.5.  PM 2.5 poses the most significant health risk as it is highly aspirated, especially by children, getting deep into lungs and even crossing into the blood stream.

Again, due to budget, there are some limitations.  Higher volume samplers, such that the DEQ can employ, can provide richer data, by pulling higher concentrations faster through the filters.  And we also know that the heaviest deposits of metals likely to be associated with ESCO’s emissions, are unlikely to be captured this far from the facility. In DEQ’s approval of the testing plan, agency staff flagged the fact that because of the lower flow rate of the MiniVol, the minimum detection limits (MDLs) will be higher. In some instances we may not detect the presence of some heavy metals, like arsenic and cadmium, but they may still be present at unsafe levels because the MDLs are greater than Oregon’s established health-based benchmarks. But for manganese, lead, cobalt, and nickel, toxic metals all associated with ESCO’s emissions, our sampling will be sensitive enough to demonstrate whether or not these pollutants are below health-based benchmarks.

So what are the overall benefits of this limited monitoring project?  In addition to seeing how much of ESCO’s manganese emissions and other metals associated with the steel refinery are making it to the school, we are gaining valuable experience with a lower cost community based monitoring protocol. With DEQ’s approval of the plan, we will be able to compare some of these values with  measurements taken at other facilities in the Portland metro area.   The technology is highly mobile and could be implemented in other neighborhoods which have potentially large sources of toxic heavy metals emissions.

The sampling is scheduled to commence in January 2015 and run for 12 months.  A final report will be available spring of 2016.  Just in time, as ESCO’s 5 year Title V permit, last renewed in 2012 following the GNA, will be expiring in 2017.

PATSAC work concludes

Monday marked the final scheduled meeting of the Portland Air Toxics Solutions Advisory Committee.  I am feeling a little chagrined this morning, as my participation did not end how I would have hoped.

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A citizen’s real right-to-know?

When people ask me about the seeming success of our work recently to reduce emissions from ESCO, I am reminded of some of the first advice I received from a DC consultant:  “Get a good lawyer.”  Of all the arcane knowledge I have had to master to navigate this work in advocating for less toxic industrial emissions in the air around my children’s school, the most important has been understanding the legal framework of how air pollution is regulated.  The first most basic lesson is:  regulating pollution is a legal process.  The polluters know that, which is why companies spend a lot of money to have attorney’s manage their compliance obligations.  The state knows it, as they live by the mandates of federal law, which in Oregon’s case, due to draconian cuts over the last few decades, ensures that federal obligations, ie: the bare minimum of regulatory protections, eat up nearly all of the agency budget to implement, thus ensuring they will never have sufficient discretionary funds to address broader concerns.

Unfortunately, it is the neighboring communities and citizens who are the last to know, and even if they do, rarely possess the resources to provide basic legal representation.  Which leaves them at a severe disadvantage, most often not even comprehending how little impact their well orchestrated efforts afford them.

With this in mind, I found myself wondering: What if there was a Miranda Rights for citizens when it came to participation in the regulation of air polluters?  I imagined citizens would have this statement read aloud before any public hearing on an air emitters permit, requiring a verbal “yes” response, or signature to signify understanding:

You have a right to speak, though we prefer you remain silent.  Anything you say or do can and will be held against you, as it will marginalize your voice and make you look ridiculous as contrasted to the rational voice of business and regulators. You have the right to speak to an attorney, and you will, but that attorney will work for the polluter. If you cannot afford an attorney, the state will provide legal council to the regulatory authority to assure them there is nothing more that can be done on your behalf.  Do you understand these rights as they have been provided to you in the most garbled legalize within the 40+ pages of the polluter’s permit or buried in the labrynth of the state and federal regulatory websites?

Then I imagined that the federal law (EPCRA) that provides for the citizen right-to-know what toxic pollution they are exposed to, should be expanded to include language to inform and avoid misconceptions about what “rights” citizen’s have to engage in the public due process afforded them:

1.   You have a right to a public hearing and the right to speak publicly about your concerns.

2.   You have a right to know that this is a legal proceeding, and the state is only obligated legally to provide the opportunity for you to speak. The state has no legal obligation, authority, or other incentive to act on what you say, no matter how compelling your concerns.

3.   You have a right to know that the state agency is legally represented in its obligations to federal pollution regulation laws by the Department of Justice, which therefore cannot act in the public interest, as their client is the state regulatory agency.

4.   You have a right to know that the polluter has the best paid attorney (s) in the room.

5.   You have a right to know that other than some vague ideal agreed to by the Congressional consensus that created the Clean Air Act and the 1990 Amendments, regulation of polluters is not driven by health based standards and an understanding of where the bottom threshold is where air pollution, in all its aggregate synergistic magic, does harm to the human body.  Air pollution regulation is driven by the economic feasibility of demonstrated technology.

6.   And, you have the right to know, there is a huge gap between those last two points. You and I, and our children, live in that gap.

ESCO GNA and PERMIT RENEWAL CALENDAR

Tentative Schedule for Final Resolution

October 2011                  Ongoing communication toward GNA Terms Agreement between ESCO & Neighbors; DEQ issues draft of permit

November 4th,  2011    GNA signed by all parties – or not

November 2011              Public Forum

January 2012                DEQ initiates permit renewal process

February 2012               DEQ issues new Title V permit to ESCO

More information and background:

ESCO GNA_BACKGROUND

ESCOGNA_Timeline

ESCOGNA_Content

ESCOGNA_FAQ

Calling on Senator Merkley to defend the Clean Air Act

Watching the recent congressional attacks on the EPA’s work to protect the public and our planet from the devastation of toxic air pollution, it was heartening to see Oregon leaders stand up to the bullying and special interests. Specifically, Senator Merkley spoke on the floor against amendments that would undermine the effectiveness of the Clean Air Act, saying specifically in a speech on April 7th, 2011:

Merkley: Attacks on Clean Air Act Would Harm Health
Merkley: Attacks on Clean Air Act Would Harm Health

“It is tempting to think that a two- year delay might be an acceptable middle ground, but a two year delay in protecting public health is two years too long.”

Unfortunately, a bill co-authored by Senator Ron Wyden, provides for what many believe is a permanent delay of implementing a law passed by Congress in 1990 that called for the establishment of emission reductions for industrial boilers, which burn solid waste and other fuel for energy and heat.  When I called Oregon DEQ to inquire about the presence of these facilities in Portland, I was told that it is very difficult to quantify the emissions, by the agency’s estimate boilers number in the thousands in the Portland metro area alone.

This is why Neighbors for Clean Air and other public health advocates like Oregon Physicians for Social Responsibility are asking that Senator Merkley meet with us. We would like to express our concerns specifically about the very real public health impacts of this bill which will cause the premature deaths of between 7,500 and 19,500 people, and with each year of delay, many thousands more. This is a direct assault on the EPA and the Clean Air Act, according to an EarthJustice fact sheet, Permanent_Damage_Senate, released in August 2011 , which says: In addition to carving out loopholes for industry and permitting premature death, S. 1392 undercuts Clean Air Act protections from the dirtiest industries. Rather than have the EPA set health standards based on the emissions of the cleanest facilities in the country—as the Clean Air Act specifies and courts have repeatedly upheld—the legislation would direct the agency to set its health standards based on the emissions of the dirtiest sources.

This approach to pollution control reflects politics at its worst. It reverses a common-sense approach that has been a keystone of Clean Air Act protection for decades: clean industrial facilities are the model for dirty ones, not the other way around. If a facility can operate without spreading sickness and death to the local community, that should be encouraged, not undercut. We are concerned that bills like this do permanent damage to the excellent progress the Clean Air Act has achieved in protecting the public health from toxic air emissions.

S1392 asks for delay of implementation of critical upgrades to industrial boilers, which our Oregon DEQ estimates are numbered in the thousands in the Portland area alone, to be established not earlier than 5 years, with no provision of a maximum time frame for compliance. It goes further to reclassify a List of nasties as potential fuel, such designation of which will provide the permanent exemption of the burning of old tires, plastics and wood soaked in cancer causing flame retardants in out-dated facilities with no pollution reduction equipment installed. Because only a handful of these facilities are large enough to meet the requirement of federal reporting and monitoring, the rest will be uncontrolled, unmonitored and have no reporting requirements. We need Senator Merkley to stand up for the protection of our children’s health from these harmful emissions, and the protection of our community right-to-know what is in our air.