In these comments to DEQ, CAAT repeats their verbal request from the November 18, 2019 Public Hearing on this subject for DEQ to revisit and revise the list of 26 Toxic Air Contaminants that are proposed to remain as Level 5 toxins, and thus not subject to a greater scrutiny as Level 3 toxins.
Diesel Particulate Matter needs to be treated as a toxin more subject to regulatory oversight by DEQ/OHA and mitigation by the polluter. Awhile back, our state of Oregon forgot to impose regulations on obsolete diesel engines, and the state became a dumping ground for those highly polluting diesel engines. A discrepancy was created that defined Oregon from the other West Coast states as one accepting of obsolete and polluting equipment. Polluters took advantage of this discrepancy and moved engines banned in other states here. This is a type of ‘toxin dumping’ that unscrupulous polluters often engage in. The effect of this is for the air and the people of Oregon to become subjected to dangerously high exposure levels of Diesel Particulate Matter. The result is that Diesel Particulate Matter air pollution imposed greater harm on the people of Oregon than adjacent states and markets. Please access [https://ww2.arb.ca.gov/…/summary-diesel-particulate-matter-…] for more information on the known dangers of Diesel Particulate Matter.
It is quite likely that other polluting industries will follow this pattern of ‘toxin dumping’ with chemicals that are under-regulated here, but regulated in nearby states. In particular, the proposed Level 5 toxins that are already included in California’s Proposition 65 regulatory framework and warning system, need to be revised as Level 3 pollutants to prevent this ‘toxin dumping.’
Below are some of these VOC’s, toxins, and pollutants that are regulated under California’s Proposition 65 but that are included in the proposed Oregon CAO Level 5 categorization:
Acrolein
Anilene
Dichlorovis (DDVP)
Diethelylene glycol monoethyl ether
1,2-Epoxybutane
Hexamethylene-1,6-dilsocynate
4,4’-Methylenedianiliene (and its dichloride)
Propylene
Propylene glycol dinitrate
Silica, crystalline (respirable)
1,2,3-Trichloropropane
Vinyl bromide
Even if these toxins exist, or are created, at very low emissions inventory levels, given the history of Oregon as a dumping ground for obsolete and polluting diesel engines, it is likely that polluters will move production of these toxins to our State, engaging in ‘toxin dumping’ and the subsequent contamination and negative health effects, so as to escape regulatory mandates existing in other states, including California. CAO does not provide for an insurance penalty for paying for injury, mitigation, or spill clean-up so that burden would fall onto the people of Oregon.
With CAO, Oregon should seek to create a more stringent, comprehensive, and protective regulatory apparatus than exists in California (and certainly one that is not less so.) Given past Agency inadequacies, a rapidly growing population who expect a healthy and safe community, and the natural beauty and the need for continued sustainability of Oregon’s ecological systems and environment, CAO should regulate all contaminants currently regulated under California’s Proposition 65, and any existing Washington-state statutes, at a minimum.
In closing, the Risk Analysis behind CAO is predicated on insuring our states commitment to protecting the health of the state and air we breathe, and that insurance creates a liability that should not be the burden of the taxpaying public, but on the polluter instead. If CAO does not include a comprehensive regulatory strategy for, and built-in, actionable, sanctions of polluters, including a regulatory structure at least equal to neighboring states, then it becomes a toothless agent, a paper tiger, that has little overall impact or meaning, even though it purports to be a protective force.
With the changing dynamics of our State and the climate, it is imperative that DEQ take an aggressive leadership role in regulating polluters. No longer should the State allow her people, no matter how marginalized they may be, to become the recipient of known toxins from dangerous industries and their ‘toxin dumping.’ DEQ, OHA, and the other State Agencies need be our shield against dangerous toxins, including the chemicals and compounds listed above, from polluters who refuse to take responsibility for the damage they create.
Severe human health effects should comprise individual as well as additive effects.
‘Severe’ should be an indication that is a causative for any negative health effects
Since these toxins, many of which are synthetic and do not exist in the natural environment, affect the human system in negative ways, causing potentially permanent injury, they should all be considered severe. The bee sting analogy (OHA) does not really work for me. No one willingly seeks to be stung, even if bee venom is a non-synthetic irritant for which the majority of the population is only going to receive a minor irritation. The sting is still severe in its delivery, and of course one can literally be stung to death. Yellow jackets? Killer Bees? What about yellowish airstreams and killer polluters? Are both acute instances and chronic exposure ‘severe’? I think so. And who knows what the emissions are, at what levels and how concentrated, and any potential densities of exposure? Polluters are, after all, allowed to self-report emission inventories and releases. Are they always being honest? Ever hear of Sapa defrauding NASA for the last 20 years?
Human sensitivity is not the same as acute physical injury. Severe should be construed as a causative for any negative health effects. In the same way, hydrogen fluoride may be a different hazard than selenium, and have a different TRV, but chronic exposure to selenium will have a severe effect on human system including vision loss, paralysis, cardiovascular, hepatic and renal effects.
The State must protect the health of the community. At least, that is what I say to myself each November when I pay my property taxes. And, when someone moves into a community, they may not even be aware that different emissions from polluting industries will have a severe effect on their health and the health of the wider community, or have the base knowledge that something is wrong with that smokestack across the street. The headaches and coughing, the kids nightmares and bloody noses, may not be severe in some peoples views, but over time….
So, Option 1, the choice that offers widest protection statute for the health and well-being of the local community, and the adjacent communities is the only choice.
And, industry should not be allowed to slow this process down. The people of Oregon have already decided they want to live in cleaner and healthier environment.
Overall, the TACHRA document provides a comprehensive and detailed framework for Oregon-based polluting industries to perform a series of tasks that will allow them to continue to pollute and endanger local residents and fauna, and poison flora, waterways, and land.
These areas of concern came up for me as I read though this document:
1: Allowing industries to self-assess with little or no oversight from DEQ, or any other State Agencies, is an open invitation for fraud, and for unscrupulous companies to provide skewed data.
2: Public involvement in both this process and the process of determining RAL’s and Adjusted RAL’s is virtually non-existent (post-SB 1541), and so removes the affected population from joining the debate to protect their own health, lands, and air.
3: Many determinative effects and resultative actions remain undefined or unclear, including what, if any, penalties exist for providing false data, for operating illegal un-permitted sites, and for polluters who repeatedly break the law and violate health standards.
4: Are any businesses or industries or other entities that release dangerous pollutants into the air exempt from RAL’s?
5: Why are so few actions and solutions being implemented to actually reduce health risks to the public?
If self-assessment by polluters remains the only reporting mechanism, Level Three and Four Risk Assessments should be required when community complaints reach a threshold of consistency over time and scope. For example, if DEQ or other State Agencies receive a set number of complaints over a six-month time period for a particular and unique nuisance, the local polluter must do a verifiable Level There or Level Four Risk Assessment within a reasonable period of time. Verification can be conducted by the State or an independent and reputable third-party. Because of the immediacy of complaints from the public, a venue for public input needs to be implemented so both the State and the polluter hear from the community on the effects of the pollution. The resolution of pollution problems must rely on public participation as much as, if not more than, industry self-assessment since the likelihood of under-reporting of toxin release by polluters is well established, historically and locally. In the case of invisible or unnoticeable toxins, local health effects should also be considered as a determinate factor in assessment using local epidemiological reporting by clinics, schools, and others.
Again, the result of self-assessment leaves the pollution, and resultant health burden, on the public and is not a verifiable quantification of pollutant releases. To be equitable, the public must be made aware of, and be included in the process of determining, the dangers of living and raising children near polluting industries and businesses.
Going through the TACHRA document:
In section 2.1, page three, paragraph five, regarding the final sentence: Are cancer burdens assumed, or are they statistical from OHA and other Agencies data, or other sources? If polluters are clustered together, as they are in the Cully neighborhood in Portland, statistical data from OHA, health providers, and schools would be more relevant than assumed cancer rates.
In Section 2.2.1, page five: For polluters within 2 km of a school, Level 3 or Level 4 Screening Risk Assessments should be mandated given the susceptibility of young people to pollution related chronic and other illnesses. In general, ELAF should be prioritized.
In Section 2.2.2, and in general: While Mutlipathway Factors already include agricultural land and bodies of water where fishing takes place, wetlands need to also be considered as they are incubator zones for many species, including endangered species. Given methane outgassing from wetlands, another method should be established for monitoring wetlands habitats, perhaps tissue sampling of indicator species.
Section 2.3: The Risk Assessment Process needs to be more community inclusive with the public more engaged. Perhaps a community complaint designation for the polluter of ‘high complaint level’ (many complaints) or ‘low complaint level’ (few or no complaints) for areas zoned for residential use in the vicinity of the polluter needs to be designed. The public should be informed of this ‘complaint level’ during the Risk Assessment Process.
Section 2.4.1: Under Modeling Protocol, page nine, bullet point one, include ‘sensitive wildlife areas.’
Section 3.1.1: Polluters estimating pollutant emission rates compounds the main problem with the Draft TACHRA regarding the dangers of industry self-assessment, as stated previously. Polluters have made a mockery of self-assessment and fostered corrupt practices at the State level, and this has all been well documented by media outlets, independent scholars, and environmental activists over decades of research and investigation. Allowing polluters to “assess toxic air contamination emission at the capacity to emit” (3.1.1, bullet point 2) just provides one more level of distortion for unscrupulous operators. A better way may exist in examining chemical intake manifests and determining where toxic compounds, and elements, go after being processed by the industry. For example, if a company is receiving 1000 .lbs of methyl chloride a mechanism should be created to account for the use, synthesis, and release of the dangerous chemical emissions or byproducts into the local environment. Needless to say, any hazardous residues must be disposed of properly. This is a more responsive methodology to local health concerns and contamination than relying on the ‘capacity to emit’ method.
In terms of Adjusted Hazard Index RAL’s (page 14), public participation and community inclusion with EQC Advisory is crucial. Developmental effects from pollutants are recognized in the Draft TACRA but need to be prioritized, especially for mutagenic contaminants [e.g Cr(VI)]. There is a critical need for verifiable assessment and containment of mutagenic pollutants. Marginalized and other frontline communities deserve special protection, outreach, and inclusion given neonatal care concerns (access, affordability, education, language, etc.) Any development of higher index numbers should necessitate more robust pollution containment procedures.
Section 3.2, page 16, paragraph two: Why does ‘Fugitive Emissions at Stage One’ not include on-site truck transportation emissions and spillage?
Section 3.3, page 17, paragraph three: Simple modeling for one hour extrapolated to a 24-hour emission footprint is an invitation to provide skewed data and perpetuate fraud. A more reasonable approach would include either Level 3/4 Screening Risk Assessment, or on-site 24-hour modeling for a multi-month long sampling period.
Section 3.4, page 17, paragraph seven: The public needs to be informed of, and invited to, any and all meetings between DEQ and the polluter.
Section 3.5: Title V facilities and industries that use or produce criteria pollutants, or highly toxic PBT’s, should be mandated to perform Level Four Screening Risk Assessments. PBT emitting, or production, facilities and industries should have mandated TBACT to eliminate or minimize toxin releases into the environment. Public notice and inclusion here are crucial.
The State has spent considerable time and resources defining explicit Risk Action Levels. However, communities should not be forced to trade or relinquish their health safety, or the health safety of their animals, lands, agricultural products and consumable garden foods, or the health of local flora and fauna for any increased risk that comes from CAO Risk Action Level permitting. Unless enforcement of environmental quality regulations and clear consequences for pollution violations are codified within the TACHRA, including enforceable sanctions, mandatory retrofits and filtering using TBACT (e.g. thermal oxidizers, scrubbers, containment housing, and electrostatic filters), substantial monetary penalties, or shut-downs, then TACHRA will not be a sufficient protection for the people and environs of Oregon. As mentioned earlier, the States’ and Agencies reliance on unsubstantiated and unverifiable self-assessments from polluters may very well allow for a return to past practices where DEQ functioned more as a bystander, aware that something was going on with some toxic pollution release and contamination, but unable or unwilling to take any action, rather than a functioning regulatory agency charged with protecting the health of the people of Oregon, or the Oregon environment.
Cully Air Action Team (CAAT) public comment points for Environmental Quality Control Commission on the topic of Cleaner Air Oregon.
Please consider the below comments as a short list of items that need to be addressed in order to fulfill the Governor’s mandate for health-based regulatory overhaul of air toxics.
First, CAAT would like to recognize the positive aspects of these CAO declarations. The ‘Community Engagement’ (OAR 340-245-0120) provisions seem robust and well-designed, although EPAC’s (Eastside Portland Air Coalition) suggestion of having an ‘ombudsperson’ to oversee effective implementation of outreach and support for all community members would be a welcome insurance of oversight.
The ‘Air Monitoring Requirements’ (OAR 340-245-0240) seem to have been strengthened, and yet the potential loophole for unverifiable self-monitoring results still looms as a real vulnerability. Given past confusion on industrial polluters releases, toxic inventories, and effective containment of hazardous waste, it may very well be major flaw, as well. CAAT encourages the State Agencies to conduct surprise visits to industrial polluters, especially those that have received or are receiving numerous community complaints on nuisance odors, or that are in close proximity to vulnerable populations and K-12 schools, or that use carcinogenic and mutagenic toxins.
CAAT is still very concerned regarding potential misuse and overuse of exemptions to the ‘Risk Reduction Plan Requirements’ (OAR 340-245-0160.) Again, CAAT requests that the state impose a limit on the number of exemptions to be issued under 340-245-0160, whether it is an arbitrary number of 5 total exemptions for the entire state during each five year cycle starting in 2019, or an upper maximum limit of total permits. CAAT feels the agency is perpetuating a loophole within the CAO rules, and reminds the State that exemptions falling under 340-245-0160 should not be handed out merely if a toxic emitter or industrial polluter requests one and follows the DEQ exemption criteria, as has been the case with the past lax permitting structure.
Another opportunity for community engagement may also exist with implementation of 340-245-0160, if the agency empowers a recognized community advocacy group to become a part of the decision-making process, for or against the issuance of any exemption permit.
CAAT also supports EPAC’s submitted comments and would like to emphasize the importance of Point Six and Point Ten in their “EPAC Public Comment Points for EQC CAO”:
6. Get rid of potential loopholes in the draft rules by eliminating permissive language. Rules should be rules and not loopholes. When using the word “may”, DEQ should provide a limitation on the discretion.
10. Air monitoring should be mandatory and done on a surprise basis. Requiring air monitoring is the first step in restoring public trust. If we don’t know what we are breathing and how much, how is any rule going to be effective? It will also be a good foil against emissions inventories and a way to see if results line up in terms of what industry says they are emitting and what they are emitting.
Lastly, CAAT reminds DEQ and the State that the health of the local community affected by industrial polluters is the primary purpose of this CAO regulatory framework, and whether the cost for treatment of ailments, or providing wrap-around care for sickened children and other individuals, is borne by the State or the polluter is what is of consequence here. CAAT advocates that the polluter should bear the burden, for if they are knowingly pushing toxins into community airsheds, they must be held accountable by the State. These toxins have created negative health effects, such as asthma in children, and are indicated as causative for cancers, autism, neurological disorders, and many other illnesses and diseases which limit life, cause immense suffering, and cost the State a huge amount in associated heath-care costs. The negative effects of airborne pollutant sedimentation and bioaccumulation in Oregon wildlife, local flora and fauna, and home gardens and farms are also of great concern to CAAT.
The remedy for these injuries would be best accomplished by:
— eliminating the loopholes mentioned above regarding 340-245-0160;
— conducting unannounced, surprise, monitoring visits to industrial polluters;
— and, requiring all industrial polluters to use TBACT filtering and capture devices for pollutants.
Protecting the health and well-being of the diverse environs and communities in Oregon is an obligation that local industrial polluters must recognize, and commit engineering capacity and resources to, if they want to share the local airshed with the people of Oregon.
The Cully Air Action Team thanks the EQC for taking the lead in protecting our health and the health of the Oregon wilds.
Cleaner Air Oregon Advisory Committee Comments, August 29-30, 2017, Portland OR.
What happens when the economic benefits of pollution determine its regulation? Carol van Strum, a great Oregon resident, asked that question 30 years ago regarding a dangerous wood treatment chemical called Penta. The recent scandal involving Bullseye Glass’s metal contamination of a large swath of SE Portland opened the question up to public debate again, and led, in part, to these CAO regulatory planning sessions. The local community rose up, once again, outraged at Bullseye, and the DEQ, who had failed to protect public health.
The problem is, cost-benefit considerations, like acceptable risk, contain fatal flaws.
Prioritizing profit above community health, allowing paid corporate lobbyists to interfere with local decision-making, and gaming the system with regulatory loopholes, such as self-monitoring, confuse and diminish the regulatory protections which we all require for health and well-being.
The effects are not just nuisance odors which require us to close our windows and stay inside, but these toxins also endanger local wildlife, sabotage cottage industries such as eco-tourism and organic small scale farms, and create chronic neurological health conditions which burden public schools with autism, ADHD, asthma, and other health issues.
These toxic legacies are what CAO originally was designed to eliminate.
I think at this juncture of America culture and reality, we all recognize that racist and classist zoning laws, and institutional corruption, have created an Oregon where marginalized populations have borne the brunt of the effects of carcinogens, mutagens, and toxic irritants.
Marginalized populations have had little awareness of these poisons, virtually no redress, or even a chance to escape the local toxicity. Again, the echoes of Van Strum’s question sound: What happens when the economic benefits of pollution determine its regulation?
Unfortunately, over the past seven months I have watched as these CAO public input sessions have been undercut and pushed down the same old dead-end pathways. I have listened as the lobbyists pled inevitable economic calamities. It seems rather ironic then, that we all getting a kicker from Oregon taxes back next year.
While the latest proposed CAO draft contains many essential modifications to the existing permitting and regulatory structure, increasing cancer fatalities from polluting sources is one that is just not acceptable. Such a proposal has no structural integrity for the future, or for improving community health. There is no reason to give cancer a boost. I believe the public has been quite clear in opposition to elevating cancer deaths from new, or existing, industrial pollution sources.
In Sections 34-245-0080 and 34-245-0230, regarding Conditional Risk Level, often solid regulatory language is followed by loopholes allowing polluters to escape responsible pollution management practices. Section 34-245-0080 page 27 states: “(A) Risk Assessment. The owner or operator must _attempt to_ demonstrate that the source complies with the applicable Source Risk Action Level” I propose striking the words ‘attempt to’. The state must insure TBACT is being used fully and without reservation. I would also propose that ‘Conditional Risk’ permits are issued in a finite amount, say five permits around the state, reflecting the abstractions used in Acceptable Risk formulations for cancer deaths per x number of inhabitants. Once that total permit number is met, new permits must not be issued, or renewed, until one of the ‘conditional risk’ polluters returns to the regulatory fold in which all other companies must reside.
The 270 and 300 day reporting period also seems to me to be far too long. Unless I am misunderstanding 340-245-0050 (c)(8) on page 21 which states the polluter has almost a year to submit a Risk Assessment while they still are emitting poisons, I cannot understand the lack of diligence on the states part to protect the community health with this long and dirty time reporting period.
If the polluter is applying for one of these extraordinary ‘Conditional Risk’ permits, a more imminent relief to the dangers to public health is due. These limitations seem fair to me, and recognize that regulations are not subject to mere economics but must also include community health.
In Section 34-245-0230, page 48 (B)(c)(A), it should be incumbent on the industry to protect the health of the local population rather than have poison release determined by a monetary inability to control release. I cannot burn old tires in my yard because hauling them off to sanctioned dumpsite/recycler is too expensive. And the double whammy of health impacted by future liabilities is quite glaring here. As has often happened with toxic orphan sites, pollution remediation and health costs extrapolate wildly in future projections, with the public taxpayer forced to shoulder undue burdens of tax-funded relief efforts as well as those prior health maladies.
Further along, on page 49 the draft states: “(B) DEQ may consult with OHA, local elected officials, local Indian governing bodies, and state and federal agencies that have jurisdiction in the area of impact, before making a final determination regarding the postponement.” I would propose changing ‘may’ in Sentence One to ‘must’ to insure proper democratic representation of the local community regarding the issuing of any extra ordinary pollution permit allowances.
Section 340-245-0240 defines Source Ambient Monitoring Requirements. The agency should be applauded for inserting strong language and recognizing the local community’s needs and realities. However, the continued procedure of unregulated self-reported monitoring by individual polluting industries needs to be codified to insure compliance with verifiable data results. While DEQ may continue to practice unannounced visits to sites, as long as it has the means to, the sense that monitoring data will be conducted by the polluting industry as they see fit, often with coordination from out-of-state right wing think tanks and others, and whose submittal of data will likely not be challenged by DEQ or anyone else, calls into question the whole nature of permitting and enforcement by the state.
In many other industries, from medicine to education to public safety, to even driving an automobile, rigorous, objective, and verifiable testing and licensing is the norm. DEQ, perhaps in combination with OHA, should be the sole tester and verifier of data sets. Rather than the owner, or a lab he is told to hire by industry insiders, the agency must step in, test and verify, and enforce the laws. If nothing else this would insure equity on the part of the state as to how it deals with her people who seek licensure and industries who pollute and want to choose Oregon for their home.
Gregory Sotir
for the Cully Air Action Team
gsotir@cleanaircully.org
Charting, monitoring and bettering air quality issues in the Cully neighborhood of NE Portland.
