In response to the recent crisis over air toxics in Southeast Portland, the Environmental Quality Commission (EQC) issued a temporary rule that applies to colored art glass manufacturers, including the Bullseye and Uroboros companies. A Forest Service moss study and subsequent air quality monitoring identified Bullseye Glass as the source of heavy metal pollution at concentrations far above health-based benchmarks for contaminants including arsenic, cadmium, and potentially hexavalent chromium. In addition, Bullseye Glass had never installed the most basic emissions controls on its glassmaking furnaces – uncontrolled emissions of heavy metals were pouring from Bullseye’s furnaces day after day into the surrounding neighborhood.

Chris Winter speaking at a public hearing about the air toxics crisis in SE Portland. Photo by Beth Nakamura, OregonLive.

Chris Winter speaking at a public hearing about the air toxics crisis in SE Portland. Photo by Beth Nakamura, OregonLive.

The temporary rule was prepared and recommended by staff for the Department of Environmental Quality (DEQ), which has come under heavy criticism for its regulation of air toxics in Oregon and the Portland Metro area. The local community and local elected leaders were outraged to learn that DEQ had allowed Bullseye to continue emissions of toxic chemicals for years without putting basic emissions controls into place. The proposed temporary rule was designed by DEQ to address this gap in regulation and the immediate health threat to the local community.

The EQC originally posted the temporary rule on its website on March 14th and stated that it would approve the rule less than one day later without allowing for any reasonable public comment. An outpouring of opposition to this plan convinced the EQC to allow for a brief 14-day period of time within which to comment on the proposed rule. Crag Law Center prepared and submitted comments on behalf of 13 social justice and environmental organizations asking that the EQC strengthen the rule.

The final version of the temporary rule adopted by EQC has again come under heavy criticism. Despite promises from the Governor and the DEQ that Oregon will be moving towards a health-based regulatory system, the temporary rule is a technology-based standard. The rule simply requires that the art glass facilities install emissions controls on their glassmaking furnaces by September 1, 2016. Until that time, nothing in the temporary rule prohibits these facilities from further uncontrolled emissions of toxic metals. And there is nothing in the rule that requires the art glass companies to demonstrate that their activities will affirmatively protect public health after the emissions controls have been installed.

Even more worrisome is the fact that the temporary rules allow for an exception to this technology-based requirement. These art glass companies may continue to use chromium III as a raw material in an uncontrolled furnace if they can show that emissions of chromium VI will comply with certain criteria established in the temporary rule. Those criteria include .08 ng/m3 of chromium VI on an annual average and 36 ng/m3 of chromium VI as a daily limit.

Criticisms of the temporary rule have been focused on this daily limit. The EQC and Oregon Health Authority have provided no explanation for why they believe this limit is protective of public health. While OHA claims to have obtained this number from New Hampshire, OHA has not explained whether the science that New Hampshire relied upon is current and up-to-date. Dan Forbes published an in depth news article on Cascadia Times taking a close look at this issue.

Moreover, the only way for the Bullseye to know whether it is able to comply with this requirement is to conduct a source test – i.e. an experiment. In short, the rules allow Bullseye to run its uncontrolled glassmaking furnaces with chromium III and to then monitor emissions from the stack to quantify emissions of chromium VI. Bullseye also has the option of running the source test in a controlled furnace, which we certainly hope will be the case. Either way, during the source test, the citizens of Southeast Portland will be unwitting participants in a scientific experiment. Instead of simply forcing Bullseye to install basic emissions control technology, DEQ and EQC have allowed Bullseye to “test” for emissions of a known carcinogen and extremely toxic substance. It is the citizens of Southeast Portland who may ultimately suffer the consequences, just as they have for years before this issue came to light in early February of this year.