Research editor Kim Moore has been tracking developments related to the toxic air pollutant controversy in Portland. You can read her previous stories here and here. Below she unspools the regulatory morass connected to toxics policy.
In April, Governor Kate Brown launched a ‘Cleaner Air Oregon’ program that requires the DEQ to consider public health risks in regulating certain classes of industrial air emissions.
It is unclear what implications the new regulations will have for businesses because the DEQ is still drafting the new rules. It plans to come out with recommendations for a new health-based air permitting program in November 2017. “It will change what some permits look like,” says Leah Seldon, manager of the office of compliance and enforcement at the DEQ, and the lead on the regulatory overhaul. “It is possible that some industries are operating at levels that aren’t a problem for public health.”
Currently, the DEQ enforces air toxics standards for stationary sources that are set by the U.S. Environmental Protection Agency (EPA) under the federal Clean Air Act. The federal regulations only factor public health risks for a handful of air toxics, known as criteria pollutants. These are often referred to as particulate matter and include ozone, carbon monoxide, nitrogen oxides and lead.
But for the majority of hazardous air pollutants, the EPA does not create standards that take into account public health risks. Instead, it requires facilities emitting toxic air emissions to install pollution controls that are based on the best available technology for a given sector.
A downside of this approach is that sometimes the sector-wide standards do not capture all emissions. It is “a one-size-fits-all” approach for entire industries “that does not do a good job of controlling all emissions,” says Sarah Armitage, policy analyst for air quality planning at the DEQ.
Oregon’s regulator can enforce more stringent air toxics standards than the EPA. But for the most part it follows the federal regulation. It does have benchmarks for air toxics that it uses to measure whether pollutants are exceeding levels that can harm public health. But the benchmarks are aspirational rather than enforceable, and are meant only to be a guide for identifying air toxics problems.
Under the its new air permitting program, DEQ regulators will require each facility to install pollution controls, but they will also take into account public health risks to vulnerable pollutions that live close by. It is a similar approach regulators in neighboring California and Washington take. As a result of Oregon’s new approach, some of the current permits that facilities use to control their emissions will have to be more stringent.
As part of the new permitting process DEQ will also take into account other sources of air pollutants close to a company seeking an air discharge permit to determine if a facility’s emissions pose a higher threat to human health than another facility in the same sector. This kind of public health consideration may go some way to avoiding situations where high levels of contaminants become concentrated in a particular area.
“If you have a facility close the freeway, that is going to amount to a different level of risk than if you have one facility in isolation with no other potential sources of emissions,” says Colin Price, director of market innovation at the Oregon Environmental Council.
It is still unclear how the DEQ’s benchmarks for air toxics will be factored into its new health-based air permitting. “One of the issues we have to address is the scope of pollutants in a [health] risk-based program and how we set those concentrations,” says Armitage. In the case of Bullseye Glass, the DEQ found 29.4 ng per cubic meter of cadmium close to the glassmaker’s Portland factory in October 2015. This is far higher than the DEQ’s ambient benchmark of 0.6 ng per cubic meter for the toxin.
Daniel Schwoerer, CEO of Bullseye Glass, said he had no idea the benchmarks even existed. “We have had an air contaminant discharge permit for 30 years with the DEQ. We have reported what materials we used. Every five years the DEQ renewed the permit. We were never informed that there were benchmarks that are not standards or regulations that we should be aspiring to,” he says.
The governor’s regulatory overhaul includes a commitment to providing the public better access to information about industrial emissions near their homes. As part of the effort to be more transparent, the DEQ is considering making air discharge permits available electronically, rather than requiring the public submit a records request.
Environmental groups and businesses want to see more transparent reporting and tracking and monitoring of air toxics. Currently, only businesses that emit 10 tons a year of a particular chemical have to report emissions to the EPA’s Toxics Release Inventory program. About 300 facilities in Oregon report under this program, but the majority of companies release less than the threshold. The Oregon Community Right-To-Know program has much lower thresholds for reporting (500 pounds and lower for highly toxic substances). But the act only requires businesses to report where they store hazardous materials, and does not track the release of these chemicals.
Tom Kelly, CEO of remodeling company Neil Kelly, says the DEQ could do a better job of testing for air pollutants. He lives near Hayden Island in Portland where residents have complained for months about a strong odor. The DEQ identified American Petroleum Environmental Services as one source of the odors. He says the DEQ needs to take an aggressive stance in identifying the potential source of pollutants. “There needs to be an early warning system. There needs to be spot testing around industrial areas,” he says.
Lisa Arkin, executive director of Beyond Toxics, an environmental group, wants the reporting of all air toxic emissions to be mandatory. It makes it easier to come up with a business solution when you have accurate data, she says. “It is hard to know what to do unless you know what businesses are emitting.”
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