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.


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:





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.

Senator Wyden’s bill threatens public health and the Clean Air Act

Back-to-school around my house creates a mix of excitement and dread. This year, thanks to a new bill co-authored by Oregon’s Senator Ron Wyden, there will be another concern and source of anxiety beyond wondering if my kids have good teachers, will schools have the resources to meet the considerable challenges in today’s budget climate, and did we pick the right lunch box.

On July 20th, Senator Wyden introduced a bill co-authored by a Republican Senator from Maine that squarely attacks the Clean Air Act, protecting industry from complying with an EPA rule to upgrade dirty incinerators and boilers. S1392 will delay implementation of critical rules designed to protect the public from the toxic air emissions coming from industrial boilers and incinerators; but worse, the bill also permanently exempts the operators of the most ubiquitous of these from reporting and monitoring, even if they are burning toxic substances like old tires, plastics, and wood soaked in flame retardants. This raises the very real possibility that instead of giving businesses a nudge toward innovation and exploration of clean energy sources and better waste handling practices, there is huge incentive to continue to burn a wider mix of toxic sludge in old out dated boilers with no emission control.

When I called the Oregon Department of Environmental Quality yesterday to inquire about the relevance of this bill in my home town of Portland, OR, I was told by an emissions inventory specialist, that it is very difficult to assess the volume of boilers operating, as most are associated with the smaller operators, categorized as non-permitted fuel use. But his best estimate is that they number in the thousands. Thousands!

I became a mom on a mission almost three years ago when I discovered my daughter’s elementary school to be situated in one of the worst toxic industrial air pollution hot spots in the nation. Not that it is ok anywhere, but this came as a huge shock because I live in a community which through dedicated investments in innovative transportation infrastructure, unique land-use policy, and individuals committed to reduce, reuse, and recycle has made our city a viable candidate for our current mayor’s aspiration to be the “greenest city in the world.” Despite this, while surfing the internet one day, I stumbled on a website published by USA Today: The Smokestack Effect-Toxic Air and America’s Schools, and learned that the neighborhood elementary school my three daughter’s had all attended was ranked in the bottom 2% for those schools exposed to the worst industrial air toxics.

But I also learned a whole lot more. Mostly that the picture is probably more complicated and problematic than that simple study indicates. In the ensuing years our organization, Neighbors for Clean Air, has worked very closely with our state environmental regulators to ensure a robust and thorough audit of the polluter that was number one on the list, ESCO, a steel refinery about a 1/2mile from my daughter’s elementary school, and certainly the most significant source of Manganese. Through concerted public pressure, the company has undertaken the very common sense step of thoroughly evaluating their near 100 year-old plant and identifying opportunities to reduce toxic emissions that come into the neighborhood. We hope to have a Good Neighbor Agreement signed with the company by the end of 2012.

We also learned that the Toxic Release Inventory, or TRI, used as the basis of the model of the national study, is only part of the picture. Due to the unique anti-sprawl philosophy that birthed our metro region’s urban growth boundary, hundreds of industrial facilities operate in the city of Portland, some in the industrial sanctuary, and many scattered among our high-density urban residential Portland neighborhoods. Only 19 qualify as the largest polluters, therefore subject to federal reporting requirements. The rest operate largely undocumented, emissions from which are only estimated by the state.

Senate Bill 1392 would permit these smaller industries to burn a long list of dangerous wastes – such as tires, plastics, and spent chemicals and solvents – without controlling or reporting the resulting emissions. It would also increase toxic air pollution by pushing back long-overdue health standards for industrial incinerators and boilers. Moreover, rather than have the EPA set health standards based on the cleanest facilities in the U.S, the legislation would direct the EPA to set them based on the emissions of the most toxic sources. The original rule that Wyden’s bill will cause to delay indefinitely, is simply a requirement to have some of the sources of the dirtiest air pollution and particulate matter emissions tune-up and upgrade the equipment they burn fuel in. It made sense to have this kind of pollution control review at ESCO, and it certainly makes sense to require it of all potential sources of toxic emissions.

It seems that Senator Wyden is sacrificing our children’s health so that polluting industries can get off cheap. This bill will allow industries to secretly burn poisonous wastes right next to schools, daycare centers, churches, and hospitals without using readily available technology to reduce their emissions. Already, 35 of Portland’s schools rank in the top 5% of all US schools with the most dangerous outdoor air quality. Oregon has the 3rd largest population in the nation at risk of excess cancers due to toxic air pollution. Senate Bill 1392 will only worsen these statistics.

Salem Update: DEQ Air Monitoring Grant

None of us want to have to wear gas masks when we walk outside on these beautiful days.  But the problem with air pollution, especially some of the most dangerous particulate matter pollution associated with heavy diesel transportation and industrial production, is that it is nearly invisible.

That is why Oregon needs to monitor.  And no one would like to see this happen more than Moms, Dads, and others who have been working tirelessly these past few years to demand it of our state.

Monitoring might show us a clearer picture about the risk to children who live and go to school in neighborhoods around Clarendon k-8 school, which modeled among the worst in the nation for exposure to toxic industrial air pollution.

Monitoring could help assess the risk for the SE Portland and Milwaukee communities who live in the shadow of the 21st largest polluter in the nation: Precision Cast Parts.

Another item we are tracking in Salem is the ridiculously obvious EPA air monitoring grant rfp DEQ has proposed to apply for up to $700,000 EPA is making available to states to monitor air toxics. There are no matching requirements, this ostensibly costs the state of Oregon nothing to address an issue that is of high concern among its citizens and public health advocates and agencies.  This is pure federal dollars to pay for what Tom Wood, representing Associated Oregon Industries, said in the house interim hearing on public health and air pollution back in August 2009 at the beginning of this adventure: “Yes we need to monitor- but you (pointing to the state representatives/senators on the committee) need to pay for it.”

This could even potentially create five Oregon jobs.  Simple, right?

To apply for these funds, DEQ needs legislative approval.  The deadline for submitting the application is May 23rd.  It has failed twice to get on the Ways and Means agenda, with no response or explanation from the Committee co-chairs: Devlin, Buckley and Richardson to my many emails (and a slew from other parents whose children attend schools identified to be ranked among the worst in the nation due to exposure to industrial air toxics).  Simple question: Why would you not take federal money to do what everyone has said repeatedly is a good idea but we don’t have the funds to do it?

About two ago I was alerted by Dingfelder at a Mother PAC cocktail hour that the Republican co-Chair (Richardson) on the Ways and Means Committee was refusing to put this on the agenda-How he prevails when there are actually 2 democratic co-chairs and 1 of him, is beyond me. This was confirmed to me by another of my Salem representatives, who put it so bluntly in an email: “There are people in this building (and in the Capitol in Washington) who object to government.  They do everything they can to starve government.  Not allowing federal funds to come into the state is one way to starve the state government.  And there are certain agencies they hate worse than others.  DEQ is probably first among them.”

Tracy Prince did a great job of explaining why Oregon should apply for this money in Sunday’s Oregonian: A simple step to improve air quality for schoolkids.

Now can you take action? Contact the co-chairs of Ways and Means and get this simple grant application request on the committee agenda:

Sen Richard Devlin- Co Chair 503-986-1719,
Representative Peter Buckley Co-Chair, 503-986-1405,