Foundry Neighbors Make Good, Agree on Air Toxics Reductions

Deal avoids litigation over ESCO emissions but exposes concern about statewide air quality regulation
The Lund Report

December 8, 2011 -- Cutting down on toxic chemicals is nice, but a coalition of environmental health advocates and the historic industrial operation they challenged to slash cancer-causing emissions are congratulating themselves for avoiding a situation that's toxic in a different way: years of acrimonious litigation.

Just because the air has cleared in a tony Portland neighborhood, though, don't expect much praise for the way Oregon regulates air pollution and its impact on environmental health.

Late last month, a group of northwest Portland neighborhood stakeholders — the Northwest District Association (NWDA), Neighbors for Clean Air and the Northwest Environmental Defense Center — signed a “Good Neighbor Agreement” (GNA) with the ESCO Corporation, a manufacturer of specialized components for heavy equipment manufacturers and other industries.

This GNA was a novel agreement in the state. It's a binding contract that requires ESCO to complete seventeen projects to reduce particulates, toxins and odors from the metalwork and molding operations at the company's two adjacent plants in northwest Portland. Combined, the projects could reduce air pollution from the plants by 20 percent over the next five years. That's the duration of a new Title V air quality permit for the plant that is currently up for renewal. The Oregon Department of Environmental Quality will put the draft permit up for public comment in the middle of this month with a public hearing scheduled for late January.

“The agreement is full of firsts for the company and for the neighborhood,” Aubrey Baldwin, a professor at Lewis and Clark Law School who helped broker the agreement, said at a forum detailing the agreement. “It really is a landmark moment in the history of how industry is relating to its neighbors.”

Neighborhood residents, particularly parents of children who attend Chapman Elementary School, cheered the agreement. It came about, in part, because ESCO representatives engaged the community after receiving numerous complaints about its emissions, but also because of the tenacious work of a few community volunteers.

But the issue exploded into the public consciousness after a 2008 USA Today report on schoolchildren's exposure to toxic chemicals showed that kids at Chapman were breathing air believed to have some of the highest concentrations of cancer-causing chemicals in the country. EPA data analyzed in the newspaper report suggested that the air near Chapman — about a quarter mile from ESCO's facilities — had high levels of manganese and other toxins.

In exchange for ESCO's commitment to reduce these emissions to a point even lower than what the law requires, the groups that signed the new GNA can't challenge the new air quality permit. A neighborhood advisory committee and a complaint line will oversee enforcement of the agreement, but the neighborhood groups agreed to give up their right to sue ESCO for emissions-related harms unless there's a violation of this deal that can't be resolved (individuals and organizations who aren't a party to the agreement can still bring suits against the company, but the agreement's signors can't materially support any such litigation).

Neighborhood advocates didn't get everything they wanted in the new agreement. When ESCO melts and processes scrap metal, sand and other materials, it emits foul odors, particulates, 36 toxic airborne chemicals, and a handful of other pollutants, according to data reported by the company. It had to detail these chemicals in its permit application, but it won't be required to keep track of those emissions in real time. That means there will be no so-called “fence line monitoring” to keep tabs on emissions along the perimeter of ESCO's facilities.

The company will pay $25,000 for a monitoring station at Chapman, but the expense of fence line monitoring means limited resources will be directed at emissions reduction instead. Attorney Mark Morford, who represented ESCO in the negotiations, said this was their most contentious element. Ultimately, the GNA focuses on reducing pollutants because there's already a great deal of information about what ESCO emits.

“We know where we ought to be focusing our efforts to reduce emissions,” Morford said.

The goodwill fostered by the Good Neighbors Agreement and the observers didn’t extend to DEQ, at least not the rules under which it operates. Multiple speakers at the Chapman forum praised the attention and time spent by specific individuals from DEQ involved in informing the agreement (DEQ is not a party to the deal) while lambasting inflexible policies that make it difficult for their staff to do more to protect environmental health across the state.

“This is a terrible indictment of Oregon DEQ, who does in fact have the discretion to more seriously control toxic emissions into our common airshed,” said Sharon Genasci, who heads the NWDA's health and environment committee. She's been concerned about ESCO for 20 years, but despite decrying the lack of fence line monitoring, she said her committee signed on to the agreement because it was a welcome first step.

“We're glad to see this and it's way overdue,” Genasci said.

While the forum involved much back-patting of ESCO and the neighbors for engaging one another in the agreement, Oregon's air may still pose many risks, especially to school children.

“I was stirred by a national report that showed my daughter's school to be ranked among the worst 2 percent in the nation,” said Mary Peveto, who represents Neighbors for Clean Air, a signatory to the agreement, which she called a “game changer” for Oregon.

“Unfortunately, there's 35 other Portland-area schools that suffer potentially at the same risk,” Peveto said. “It concerns me that there is not a system or framework in place to address the concerns of all the children in Oregon.”

In fact, USA Today's analysis of EPA data shows a number of Oregon schools — six in Portland, three in Medford, two in Junction City and one in Pendleton – could have even worse air quality than Chapman. Meanwhile, ESCO isn't the only source of air pollutants in the neighborhood, let alone elsewhere in Portland or Oregon.

“The unfortunate news is there's really no place to run or hide in the Portland Metro area,” Baldwin said during the forum. “You can sort of choose your poison, but you can't be free.”

DEQ Northwest Region Division Administrator Nina DeConcini said at the forum that the department takes criticism seriously. DeConcini and DEQ staffer George Davis, who is responsible for ESCO's new air quality permit, each stressed that such criticism should be addressed to the Oregon Environmental Quality Commission, which oversees their department.

“We can't do it from the bottom of DEQ,” Davis said. “It has to start from the top and I think that role really belongs to [the public].”

As frustrated as attendees of the forum may have been with the current rules, they widely welcomed the deal as a first step toward bettering public health, a step some said might serve as a model for other communities.

“Finding a way to moderate between the neighborhood's concern for the health of their children and the quality of life they have, and the ability of ESCO as a historic company to continue to produce economic benefits was an effort well worth having,” Rep. Mitch Greenlick (D-Portland) said during an introduction to the forum.

Meanwhile, ESCO General Manager Ian Bingham said the company is proud of the agreement.

“We believe that the GNA, and the process for getting to this point and the agreement that spells out how we will work together over the next five years is simply the most constructive path forward,” Bingham said.

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