Air Toxics Bill Stirs Opposition from Supporters of Cleaner Air Oregon

By PAUL KOBERSTEIN

Senate Bill 1541, the bill that would gut many provisions of the proposed Cleaner Air Oregon program before they take effect, is getting critical reviews from clean air advocates, many of whom have taken to Facebook and other social media to publicly lambaste the legislation.

The bill was drafted over the last two months behind closed doors by an ad hoc group that included Richard Whitman, the director of the Oregon Department of Environmental Quality, as well as industry lobbyists and legislators, as Cascadia Times reported last week here and here.

Although it would fund Cleaner Air Oregon, a program that was devised by Gov. Kate Brown in response to the DEQ’s failure to address toxic air pollution, many of its critics say it would severely weaken it.  CAO’s proposed air toxic regulations await approval this summer by the Oregon Environmental Quality Commission, which sets policy for the DEQ. If SB 1541 passes, it is not clear what if anything the EQC will be asked to approve.

The critics see it as a legislative end run around the core purpose of the Cleaner Air Oregon’s proposal: reduce air toxic emissions to levels that are thought to be safe to breathe, based on computer modeling and peer-reviewed science.

The industry lobbyists who initially wrote SB 1541 said they feared that these health-based regulations would be too costly for industry to implement and would cost jobs, but its effort to weaken those rules have made the bill unpalatable to CAO supporters.

“This bill is a dangerous ploy by industry to destroy the work of Cleaner Air Oregon and shift from health-based policy to a polluter-friendly law,” said Regna Merritt of the Oregon Chapter of the Physicians for Social Responsibility. “This Senate bill moves us backwards and must be stopped immediately,”.

“I feel very strongly that we need to oppose this bill,” said Jessica Applegate, a co-founder of Eastside Portland Air Coalition, an organization founded specifically to reduce the toxic emissions of a nearby polluter, Bullseye Glass, as well as to advocate for stronger statewide air toxic regulations. “We are being co-opted for political gain and nothing good can come from this bill.”

EPAC was founded in 2016 after it was revealed that residents of southeast Portland had been subjected to dangerous levels of toxic emissions from Bullseye for many years.

Applegate said her neighborhood’s air is now 98 percent better than it was just two years ago, and that other neighborhoods around the state deserve similar access to cleaner air, which she said the Cleaner Air Oregon rules as originally written would do.

Chris Winter, an environmental lawyer with Crag Law Center in Portland who has been an active supporter of strengthening Oregon’s air pollution regulations, said in a post on Facebook that SB 1541 “is a trojan horse that will be celebrated by industry if they get it to pass.”

Winter said the bill would authorize a level of toxic pollution that is several times greater than what is considered safe for people to breath.

Moreover, he said toxic emissions would have to be 6 times higher than the safe level before the DEQ could impose additional regulations.

“I predict this program will result in few if any meaningful improvements to public health,” he wrote. “The impacted communities will have lost, and I think it could very well work against public health by emboldening industry because now DEQ’s discretion to enforce against industry and protect public health may be limited by these ridiculous risk levels.”

One controversial provision in SB 1541 would restrict people who live in a badly polluted neighborhood from presenting evidence in a lawsuit against the polluter, as neighbors of the Bullseye Glass factory have done.

Lisa Arkin, executive director Eugene-based Beyond Toxics, said this provision of SB 1541 protects polluters who could potentially be liable for harming the health of neighbors by emitting large amounts of toxic substances. She said the bill would exclude evidence at trial showing that a polluter had failed to comply with regulations, as determined by the DEQ.

“If the jury may not hear evidence from the regulatory agency about compliance or non-compliance, the defendant has very few options, if any, to prove a polluter caused harm (i.e, through malfunction of equipment, failure to install equipment, violations of permit requirements, emissions detected through monitoring, etc.),” she wrote in an email.

“Since plaintiffs can’t easily gather their own air monitoring data as evidence, or do their own facility inspections, the public is mostly limited to compliance data or a compliance report collected by the regulatory agency. But that evidence MAY NOT be introduced in the trial.”

Mary Peveto, executive director of Portland-based Neighbors for Clean Air, said her group is actively trying to improve SB 1541.

“We are trying our damndest to get the $$ without giving away fundamental principles.,” she said in an email.

The bill was written by Sen. Fred Girod, a Republican from Stayton, and co-sponsored by Sen. Arnie Roblan, a Democrat from Coos Bay. All seven members of the Senate Environment and Natural Resources committee voted on Feb. 14 in support, including three Democrats and its chairman Michael Dembrow, a Democrat from Northeast Portland, who continues to defend it. It is now before the House Ways and Means Committee.

“I believe that the current form of the legislative Cleaner Air Oregon bill is a good, workable compromise, an important step forward that will put Oregon at the very front of the states working to implement health-based standards for air quality,” he wrote in a Facebook post.

In a letter to his constituents, Dembrow added, “Some news articles and social media posts suggested that this bill weakens existing air quality standards. That is not accurate. In fact, passage of SB 1541 will create, for the first time, health-based air toxics regulations in Oregon.”

He may have been referring to articles in Cascadia Times that were published in the last week. For the record, those articles clearly stated that SB 1541 would weaken Cleaner Air Oregon, and not existing law.

He said the rules set a tough health standard that must be met by new factories, though a much lighter standard that would apply to existing factories.

“This standard will put us among the most rigorous state programs immediately,” he wrote in another Facebook post. “In ten years this restriction will sunset, and the standards will potentially become even more rigorous and protecting. The implications of this sunset are what made it possible for me to accept and support the compromise.”

But Seth Alan Woolley of Portland Clear Air said Dembrow “needs to stop caucusing with Democrats that want to sell out public health. The cancer numbers are still underestimated because we don’t understand how carcinogens work together to magnify risk; we still don’t understand how carcinogens affect neonatal, early childhood, elderly, minority, and other populations; we aren’t willing to count fossil fuel PM (particulate matter) as a carcinogen; and we aren’t willing to consider non-cancer health effects, IQ impacts, educational impacts, birth defect/weight impacts, behavioral impacts, etc., adequately.”

“CAO is just a super small step forward,” he said. “There’s nothing left to compromise.”

Paul Koberstein