trade secrets

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May 14, 2018 Part 2 (Go here for Part 1 and Part 3)

Meet the polluter in The Dalles, Ore., who thinks its toxic air emissions data are none of your business.


By PAUL KOBERSTEIN and JESSICA APPLEGATE
Photographs by SARAH CLARK

THE DALLES, Ore., – Union Pacific’s creosote treatment plant in The Dalles for years resisted public demands for fewer toxic air emissions. And the company has had a surprisingly helpful ally in this fight -- the Oregon Department of Environmental Quality (DEQ).

As Cascadia Times reported last week, the plant drenches railroad ties with creosote under heat and pressure, preserving them for a lifetime of service under the tracks. Each year, the plant goes through between 3 and 4 million lbs. of creosote while treating up to 1.2 million logs, DEQ records show. The logs are then sent to an open-air storage yard on site where they sit to dry and cure for about six months. As they dry, they give off nasty creosote fumes that have been reported to stink up – even poison – the entire town.

DEQ has never asked the plant to install any pollution control devices that would reduce pollution stemming from the storage yard, where most of plant’s pollution originates. In fact, the wind disperses it throughout The Dalles, which is located at the east end of the Columbia River Gorge about 80 miles east of Portland.

Nor has the DEQ ever tested the plant’s emissions to find out exactly what toxic chemicals are in them. Two years ago it asked the company to produce a list of the types and amounts of chemicals in its emissions but has yet to receive that information.

Rather than force the plant to emit less total pollution, as one might expect from an agency with a mission to protect the environment, DEQ has called on the plant to reduce only its foul odors. Going back to the 1990s, odors have consistently been a predominant concern at the plant. This past year, total overall emissions shot up, despite the DEQ's insistence on a reduction in the use of naphthalene, a prime source of odors. And yet it's not clear that after the change that the smell has improved at all. The DEQ says it "is focusing on odors because the community provided the minimum number of odor complaints required to begin an odor investigation."

Foul odors can harm a person’s health, according to the Oregon Health Authority, but whatever is in the air in The Dalles has sent many residents on frequent trips to the doctor, as Cascadia Times reported. Odors aren’t known to cause cancer, neurological and respiratory problems, and skin rashes, but creosote's toxic emissions can, medical studies show.

Until this year, the DEQ didn’t think it was even its job to protect public health from the effects of toxic air pollution. But its mission changed dramatically in this year's session of the Oregon Legislature, which funded a new air toxics reduction program called Cleaner Air Oregon that Gov. Kate Brown proposed in 2016. Now, for the first time in its history, the DEQ is developing air toxic regulations aimed at protecting health. At least that’s the stated goal.

Ideally, Cleaner Air Oregon will give the DEQ the verve to curb toxic air pollution in places like The Dalles. Taking on Union Pacific – or “Uncle Pete” as the company likes to be called -- could pose a stiff challenge for the agency and its new program.

 

Union Pacific isn't listening

“The real question here,” Lawrence said, “is why does Union Pacific not remove the ties as soon as they are treated. If they are cooking off in the heat and that is part of the problem, this would be the best solution.”

Mayor Steve Lawrence of The Dalles has more than just a passing interest in what happens at the creosote treatment plant located on the waterfront in this Columbia River port city. “If more work needs to be done by AmeriTies, I will be one of the people seeing that they take those steps,” he said.

He was referring to AmeriTies West LLC, which has operated the creosote plant on behalf of property owner Union Pacific since 2005. AmeriTies owns the structures and equipment while Union Pacific owns the 83-acre site, a storage yard, and the finished product.

Some people in the community, such as Rachel Najjar, a local air activist, view AmeriTies as little more than a front organization while Union Pacific, the second-largest railroad in America, pulls the strings.

Najjar said her reason for saying so is based on something plant manager Jeff Thompson told her in 2016 after she filed a complaint about the odors.  “He showed up at my door unannounced after I filed a complaint. I was nursing my baby when I answered the door, thinking it was a neighbor stopping by. I told him that I would be willing to go talk to UP with him. He replied that he had to listen to Union Pacific, but they won’t listen to him.”

Thompson did not respond to requests for comment.

Union Pacific is also responsible for a Superfund site next to the plant where it contaminated soil, groundwater and the shoreline with chemicals that were spilled after it first opened in 1923. The contamination was so severe that the Environmental Protection Agency added the site to its National Priorities List in 1990.

The railroad also owns the creosote soaked crossties once workers remove them from the treatment boilers, the mayor said. “AmeriTies says the ties are owned by UP as soon as they hit the ground,” he said.

One thing Union Pacific doesn’t own is the health of the 15,000 people who live in The Dalles.

DEQ records show that the bulk of the pollution consists of toxic gases that come from ties in the storage yard. As of last December, some 2.2 million crossties, switchties and bridge timbers were stored there. In 2007 and 2008, the yard was crammed with more than 3.4 million ties, according to DEQ records.

Mayor Lawrence says he met with Union Pacific officials in 2016 during the aftermath of a Union Pacific oil train derailment in the Columbia River Gorge near Mosier about 17 miles west of The Dalles, spilling 42,000 gallons of crude from North Dakota. He says he took the opportunity to pitch the idea of moving the storage yard to some other location. “Since the oil spill, they have asked how can they be good neighbors. They have had joint meetings with leaders in the Gorge and asked for suggestions.”

One of his suggestions, he says, was to find a place to store the treated railroad ties “away from this or any other community.”

“The real question here,” Lawrence said, “is why does Union Pacific not remove the ties as soon as they are treated. If they are cooking off in the heat and that is part of the problem, this would be the best solution.”

So how did Union Pacific respond to Mayor Lawrence’s suggestion? Crickets.

“I feel at this point that they are stonewalling,” he says of railroad officials. “They acknowledge this method has been done other places but take no steps here.”

Greg Svelund, a DEQ spokesperson, said the DEQ doesn’t have the authority to force the plant to move its storage yard. “Some citizens have talked about contacting Union Pacific about this idea in the past, but I don’t know what the response was, if any,” he said.

Moreover, DEQ officials say that moving the polluting ties to someone else’s neighborhood could be a bad idea but are open to considering other options.

DEQ asked AmeriTies to evaluate potential sources of odors and take measures to reduce them. Besides changing the naphthalene content in the creosote, AmeriTies examined several other methods for reducing odors that might also reduce pollution, including two seemingly promising ones: covering up the treated ties with a tarp or placing them inside buildings that could trap the pollution.

The resulting report did not address Mayor Lawrence's idea of scoping out a new location for the storage yard, far away from people. And given the fact that the DEQ allowed the polluter itself to conduct the investigation, the report could hardly be called an independent, unbiased analysis. And yet AmeriTies – or was it Union Pacific -- eventually rejected both of those ideas.

AmeriTies explained that covering the ties with a tarp “is impractical to use at our plant due to high wind conditions in the Columbia Gorge. Test studies of this technology, conducted at the Kerr McGee plant in Avoca, Pa., yield no improvement in odors while increasing operating cost to unsustainable levels.”

In addition, AmeriTies said that constructing storage buildings “would be extremely difficult to implement due to the size and number of buildings required to house our various products. Our current yard layout would require a minimum of 12 buildings to house all of our treated material” and would cost $9 million.

Union Pacific, with an annual net income of $11 billion, would still have $10.991 billion in its pocket after building the sheds.

Cascadia Times asked Union Pacific for comment on this story but got no response.

 
 Railroad ties are stored in the yard at AmeriTies West, LLC in The Dalles, Ore. AmeriTies processes approximately 1.2 million ties annually, using 3 to 4 million lbs of creosote to preserve the wood.

Railroad ties are stored in the yard at AmeriTies West, LLC in The Dalles, Ore. AmeriTies processes approximately 1.2 million ties annually, using 3 to 4 million lbs of creosote to preserve the wood.

 

AmeriTies' air emissions on the rise

Najjar, a former resident of The Dalles who moved away in 2016 in an effort, as she puts it, "to save my children's lives," was highly critical of DEQ’s strategies to focus on odors and not pollution.

“Odor is just a strategy for them to delay what really needs to be done, which is shut them down,” she said. “The toxic air has allowed creosote particulates to settle in the dust of people's homes, in their insulation and penetrating into their soil and garden. Odor reduction won't improve people's serious health problems.”

“It all comes down to the dollar for UP,” said Tiffany Woodside, who lives about a mile from the plant and avoids the fumes by staying indoors with her windows and doors closed. “Throughout the years they claim lack of funds as the reason for not implementing protective technology. Then they talk in circles finding ways around the half-ass protective measure they did agree on. They tell everyone everything is fine, ask for public comment as if this gives us some control.”

AmeriTies has tinkered with its creosote formula by cutting the naphthalene content by half in December 2016. Naphthalene is a known carcinogen and the most worrisome chemical in the plant’s emissions as far as we know. Before cutting its naphthalene usage, AmeriTies estimated that the plant emitted a little more than 5 tons of naphthalene per year.

Overall pollution levels in 2017 were higher than they were in 2016, as the company's annual pollution reports show.

The change in the creosote formula may have improved the plant’s aroma -- a claim company officials often make but which Woodside and other residents vehemently deny -- but did nothing to cut the pollution. Overall pollution levels in 2017 were higher than they were in 2016, as the company's annual pollution reports show. In the last ten years, total emissions have been higher only twice, in 2010 and 2011.

The reports show that the plant’s total air pollution emissions – which include tiny particulates, sulfur dioxide, nitrogen oxides, carbon monoxide and volatile organic compounds, or VOCs – went up by 9.4 percent in 2017 compared to 2016. Its VOC emissions alone increased by 4.6 percent. The increases appear to be related to a 34 percent increase in the number of ties stored on site.

AmeriTies has yet to identify all the individual chemicals in its toxic emissions in The Dalles, but an Air Contaminant Discharge Permit issued by the Arkansas Department of Environmental Quality to a similar AmeriTies creosote plant in Hope, Ark., offers some clues about what else might be in its fumes. The plant in Hope emits formaldehyde, a probable human carcinogen; lead, a potent neurotoxin; and hexane, a chemical that can cause central nervous system depression and irritation of the eyes, nose and throat, according to the permit.

The permit also says the Hope plant may store no more than 400,000 ties on site "at any given time," or fewer than one-fifth the number of ties now stored at the plant in The Dalles. This type of pollution control measure is not being tried in The Dalles.

Union Pacific has never even obtained an air pollution permit, which allows industrial plants to legally discharge air pollution. Instead, DEQ deals only with AmeriTies.

AmeriTies’ air pollution permit for its plant in The Dalles expires in 2020. DEQ expects AmeriTies, and not Union Pacific, to uphold the permit’s terms and conditions, according to the DEQ’s Svelund.

“The permit holder is legally responsible for the ties until they leave the yard. Period. Permitting UP wouldn’t change anything,” Svelund said. “Any entity or contractor doing work that is covered under permit conditions is responsible for complying with those conditions. Having multiple entities permitted wouldn’t change the responsibility or the operations in any way.”

Union Pacific-controlled storage yard emitted about 8 tons of VOCs in 2017, while the rest of the plant, which is controlled by AmeriTies, emitted about 4 tons of VOCs. In other words, DEQ tightly regulates the lower polluting areas controlled by AmeriTies while applying minimal regulations to the higher polluting area controlled by Union Pacific.

 

AmeriTies’ secret emissions

AmeriTies was among the few that failed to fully release their information, citing a need to protect what they perceive as a “trade secret,” as well as “a third party's proprietary information", according to a letter to the DEQ.

Naphthalene, a main ingredient in creosote, clearly is not the only toxic chemical emitted by the plant, but the DEQ has so far been unable to get its hands on the full list of types and amounts chemicals in the emissions. In 2017, during the months leading to the creation of its Cleaner Air Oregon program, program manager Keith Johnson said DEQ asked for this type of information from many industrial plants in the state. He said almost every polluter submitted data in response to the information request, which will be used to help DEQ determine health impacts to neighborhoods surrounding the plants.

“By our tracking count we had roughly 360 facilities from which we were expecting an emissions submittal,” Johnson said. “100 percent of them provided a submission to DEQ, meeting the intent of the request. With 272 of those submittals reviewed, we feel that approximately 95 percent of the submittals fully responded to our request for data on hazardous air pollutant emissions.”

AmeriTies was among the few that failed to fully release their information, citing a need to protect what they perceive as a “trade secret,” as well as “a third party's proprietary information, according to a letter to the DEQ. Could that “third party” have been Union Pacific? Neither company would say.

In February, Cascadia Times submitted a public records request for this information, but has yet to receive it.

Over the last two years, DEQ has continued to press for AmeriTies' list of chemicals. It now expects to receive it in mid-May, Johnson said. “If they fail to meet the deadline,” he said, “DEQ will take steps to address the non-compliance.”

Johnson said the program’s draft rules, which are not expected to become final until the end of the year, could require polluters to make “operational changes” in the event their pollution exceeded certain thresholds.

“Moving a storage yard could be an example of an operational change,” he said. “However, the operational change can’t just relocate unacceptable risk. So, moving a storage yard, or any other change, would need to be shown to not create health impacts at another location.”

As we’ve seen, Union Pacific and AmeriTies have dismissed the DEQ's call for toxic emissions data. Who’s to say they won't also ignore a DEQ order to reduce emissions and stop harming the people of The Dalles?

“If sources don’t comply with any of the requirements,” Johnson said, “then we would take enforcement actions against them for those violations.”

 

Paul Koberstein is Editor of Cascadia Times. Jessica Applegate is Managing Editor.