NCA BLOG

Is Cleaner Air Oregon really different?

I wrote this “open letter” in response to a facebook post earlier this week on the Eastside Portland Air Coalition facebook page.  It was a comment from one of EPAC’s founders, Jessica Applegate, a woman who has been tirelessly dedicated to clean air activism since last spring, and who has emerged as a true leader for her community.

Dear Jessica,

You made such an important point, and asked such an important question, when considering whether there exists any reason to believe Cleaner Air Oregon will substantially change the way air pollution is regulated in our state; you wrote: “This is scary and supports my worst fears- that all of the Cleaner Air Oregon will be for nothing.  How is this different?”

The simplistic answer is that this is different exactly because of you.  Because you, and thousands of your neighbors care about the outcome.  If you want to know – that is the only distinction I can see between now and 10 years ago when the state put together and executed the Portland Air Toxics Solutions (PATS) project. And it is the reason to be hopeful, beyond hopeful, optimistic. Again, because of Eastside Portland Air Coalition and South Portland Air Quality, and North Portland Air Quality, and Cully Air Action Team, and The Dalles Air Coalition, and Corvallis Clean Air, and Haydon Island Clean Air.  Never before has there been this widespread, but connected, network of clean air activists laser focused on what the state is doing around air emissions regulations.

When I first joined the PATS Advisory Committee (PATSAC) in 2009, I was so much like you are now as the Eastside Portland Air Coalition representative on the Cleaner Air Oregon Advisory Committee (CAOAC) this fall.  I had only just months before been awakened from my deep ignorance of the problem, having no applicable training or grounding in anything related to the complexity of atmospheric chemistry, air emissions regulations or even community organizing, for that matter.  I had successfully (by metrics at the time) rallied friends and neighbors around the crazy injustice of a regulatory system that made polluting our neighborhood with toxic heavy metals legal and that used only the flimsiest metrics, annualized averaged ambient concentrations, to measure any consideration of health risk.  And, like you, I had quickly connected enough dots to see that the problem of toxic air pollution was not just my neighborhood’s problem but it was the problem of any Oregonian that lived next to a facility that was permitted to emit toxic chemicals into the air, and anyone who breathed in any neighborhood in Portland.

Most importantly, I knew this was about all the children who went to schools and lived in neighborhoods as – or more – polluted than mine, whose parents and collective community didn’t have the time or resources to fix this themselves. Where populations were more likely to have higher percentages of people of color, lower income, and non-english speaking families, making navigating the craziness that is DEQ public process impossible, much less establishing a basic level of understanding about the problem and risk.

So it was, despite the chorus of skepticsm of long term advocates, I entered into the PATS committee work with great expectations. Like now with Cleaner Air Oregon, elected officials I turned to directed me to that as the answer to my concerns.  The state had a plan to resolve the deficiencies of air emissions regulations in our state.  This would be the path to closing the huge gap between what was currently legal and what was reasonable to assume was a risk to my children and all the people that breathe air in Portland.

I don’t need to rehash the outcomes of that process. The Oregonian reporter Rob Davis did a far more admirable job than I could hope to last spring in his investigative report: How Portland learned its air was toxic – and failed to fix it.

So why should we be optimistic in the face of the same such entrenched interests that will be dedicated to make this latest effort fail? This time around, why should we expect regulators to regulate and industry to capitulate?

We don’t.

It is not those players who will be different –  it is ours.  During the PATSAC process there was a loose affiliation of like-minded individuals and organizations representing the public. We were unfortunately just not prepared to do much more than support each other’s individual contributions, and more often, exchange glances and roll our eyes in understanding when we heard cringe worthy declarations of opposition to anything that moved in a progressive direction.  And when the dust settled, as we suspected, the game had been so rigged, that there had probably been no way to move against industry opposition anyway.

But as I predicted then the day I walked out, that end was just the beginning.  We have not wasted the time since, instead spending the subsequent years building broad awareness among elected leaders and local municipalities of the failure of existing regulations; of the existence of solutions to deal with toxic air pollution.  We have learned even more about the growing scientific consensus of risk, and the means by which folks working on the forefront of technology were identifying new ways to measure and new ways to mitigate pollution.  We have worked with companies willing to help us understand what is possible.  We have continued to push against ones that won’t change. We have joined forces with public health advocates.  In the lead up to the 2015 legislative session, we did the hard work to build a genuine coalition of over 20 like-minded organizations.  This coalition educated ourselves about and worked together against the most insidious air toxic in our state: diesel.

But still what we needed was you.  You – and all of the people who have risen up over these last six months speaking out, telling their stories, saying “no more!” – this is our army – the foundation of confidence that we will prevail.  We have expertise and more importantly we have solidarity, at least around the most basic principle:  All Oregonians deserve clean air all the time.

With sincere respect,

Mary

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Throughout the month of September, the Department of Environmental Quality will host a series of statewide forums on the progress of the Cleaner Air Oregon reform process. On October 5th at 6-8 PM, the final forum will take place in Portland at the Oregon Convention Center.

Before the event, clean air advocacy groups will host a rally to communicate a vision for how we can achieve clean, healthy air in our communities. Let’s show DEQ that there is mass public support for real change!

Follow the Clean Air Rally event page on facebook to get updates on speaker list and program description.

 

 

 

 

 

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