The Oregon Department of Environmental Quality (DEQ) revised its regulations in 2001 to prohibit any source subject to DEQ regulation to emit emissions that caused a nuisance (OAR 340-208-0300). This rule change included factors to consider and established the Best Work Practices program to deal with nuisance odors. While sometimes used colloquially a refer to a something not rising to a level of true concern (i.e., “the fly was just a nuisance”), in the law, “nuisance” is “a substantial and unreasonable interference with the use or enjoyment of property.” There are a variety of factors to be considered in determining whether a source is creating a nuisance. The non-inclusive list that is included in DEQ’s regulations include frequency, strength, duration, number of people affected, the character of the neighborhood, and the ability of the source to prevent or reduce the odor.
However, 12 years after the regulations were passed, Neighbors for Clean Air confronted DEQ on behalf of members in North Portland who were dealing with nuisance odors caused by a facility run by Daimler Trucks North America. In response to Neighbors for Clean Air’s claim that Daimler was causing a nuisance, DEQ said that they did not know how to implement their own regulations.
Thanks to public pressure and the involvement of elected officials, DEQ moved forward on developing a “Nuisance Odor Strategy” to give their inspectors a mechanism to implement DEQ’s regulations. DEQ’s Nuisance Odor Strategy was put out for public comment between April and July 2013 and finalized on July 31, 2013. After training management and permit writers/inspectors on the Nuisance Odor Strategy, DEQ announced the “full” implementation of the program on January 21, 2014, nearly thirteen years after the regulations were revised to prohibit nuisances.
It is still too early to tell whether or how successful DEQ’s implementation of its Nuisance Odor Strategy will be. Neighbors for Clean Air noted many deficiencies with the proposed program during the public comment period in 2013, including the fact that individual residents are still required to be responsible for determining the source of nuisance odors. While in some instances the source of odors is obvious, in others, especially near industrial sanctuaries, it is far from clear where the odor is coming from. Neighbors for Clean Air takes nuisance odors seriously: even if non-toxic, these odors can cause headaches or dizziness, ruin enjoyment of outdoor activities, or even force people inside. We continue to push DEQ to truly implement its regulations and protect Oregonians from nuisance odors.
Why Should Oregon DEQ Enforce Nuisance?
Most, if not all, of the facilities that DEQ can regulate under its nuisance authority could also be subject to a civil tort suit for creating a private or public nuisance. So why has Neighbors for Clean Air been pushing DEQ to implement its authority when we could have filed a state tort lawsuit?
Two, interrelated, reasons are cost and environmental justice. Tort lawsuits can be very expensive between lawyers, experts, depositions, and all the other costs associated with filing, prosecuting, and winning the suit. Total costs are typically estimated in the tens of thousands of dollars. This also means that poorer communities are less likely to be able to afford to bring a tort suit for nuisance while more wealthy areas may be able to raise the funds, potentially creating different outcomes based on income levels.