Public outcry over poor air quality in the vicinity of Bullseye Glass Co. in SE Portland and Uroboros Glass in N Portland, and the responses of the Oregon Department of Environmental Quality and the two companies implicated, illustrates why we say at Environmental Compliance: “I don’t know†can be an expensive answer when environmental rules are at issue.
ODEQ measured potentially unsafe concentrations of arsenic, cadmium and (possibly) chromium in ambient air near the Bullseye glass manufacturing plant in October-November 2015. The Department undertook air quality monitoring when moss samples collected by the US Forest Service indicated alarmingly high concentrations of heavy metals in the vicinity of the two glass manufacturers. ODEQ intends to set up an air quality monitoring station at the Uroboros facility in the near future.
In press statements and in a public meeting held at Cleveland High School on February 9th representatives of ODEQ told the public that because Bullseye was (and is) in compliance with its Air Contaminant Discharge Permit (“ACDPâ€) that the Department lacks authority to require the two facilities to limit or even monitor their discharges of heavy metals to the atmosphere. Bullseye and Uroboros “voluntarily†discontinued using arsenic, cadmium and hexavalent chromium in their glass formulations, but Bullseye continues to use trivalent chromium despite the known risk of chromium oxidizing (speciating) to hexavalent chromium in the combustion process. A Bullseye press release on February 12th referred to ODEQ’s “actions†as “bizarre†and expressed “confusion†over requests that Bullseye stop using chromium until the Department could confirm with “direct evidence†that Bullseye was a “significant source†of chromium in the surrounding neighborhood. Bullseye complained further that ODEQ never alerted glass manufacturers of “any need to modify their operations†before, and that the company is concerned that ODEQ’s “frantic actions could put us out of business and cause 140 people to lose their jobs.â€
                     
There surely is a lot of fault to go around but blaming the government for under-regulating polluters will probably not be very productive for Bullseye Glass Co. On the other hand, the community should hold ODEQ to account for its inaction, for its disclaiming regulatory authority, when the Air Contaminant Discharge Permit itself states that “The permittee must not cause or allow air contaminants from any source to cause a nuisance†and when the permitting rules at OAR 340-216-0082(4)(b) plainly give the Department authority to revoke a permit without prior notice “If DEQ finds there is a serious danger to the public health, safety or the environment caused by a permittee’s activities…â€
This is not to say that ODEQ should arbitrarily revoke Bullseye’s permit, something that Environmental Compliance would readily defend against, but it does bring into perspective ODEQ’s inaction in relation to Bullseye’s cry for “direct evidenceâ€.
How much, and what kind, of evidence should be required of the Department before it shuts down a manufacturing facility with 140 employees? As Bullseye points out, the Forest Service’s moss results are far from “direct evidence†of actual discharges from Bullseye’s stacks. But the pattern of moss contamination, ODEQ’s ambient air quality monitoring results, and the proximity of the Bullseye Glass manufacturing plant to the residential community may be sufficient circumstantial evidence of causation to allow the Department to pull Bullseye’s permit, or at least order the company to stop using toxic heavy metals in its formulations until it can establish through emissions testing, modeling and risk assessment that they are not creating a nuisance or otherwise endangering public health, safety or the environment.
How quickly ODEQ should act, and on what evidence, is a function of the magnitude of the threat to area residents. ODEQ repeatedly discounted the threat of harm when it pointed out at the February 9th public meeting that the exposures measured present a long term risk of cancer and so precipitous action is not called for. Community members could rightly respond that the facilities’ location in highly urbanized areas compounds what is already known to be an unacceptable risk and that the lack of stack test and ambient air monitoring data indicate the need for a swift response.
For whatever reason, the two manufacturers have backed off production of yellow glass (hexavalent chromium and cadmium) and white glass (arsenic) if not green glass (trivalent chromium) and pink glass (selenium). Contrary to the suggestion in Bullseye’s recent press release, compliance with its ACDP does not define its duty to control pollutant emissions. Bullseye and Uroboros must evaluate the potential for heavy metal discharges from their facilities to negatively impact the surrounding communities. If additional air pollution control equipment, or process changes, are required, then that is a cost of doing business that can no longer be avoided irrespective of the number of jobs at risk. The fact that this additional economic burden has come upon these manufacturers suddenly is not due to ODEQ’s lack of regulation, but is instead due to the failure of the manufacturers themselves to proactively ensure that they are operating responsibly.
                     