Swan Island

Swan Island

Michael Clapp/OPB

Oregon House Speaker Tina Kotek has criticized the state Department of Environmental Quality’s handling of a contentious air quality problem in North Portland, and is asking the agency to reconsider a determination that paint fumes from a truck maker are not posing a nuisance to neighbors.

In a letter sent last week, she cited concerns about flaws in the state’s methodology and its failure to consider more rigorous studies done by independent scientists. She also said her constituents feel abandoned by the agency.

The state launched a 2015 investigation following years of complaints from residents about odors from Daimler Trucks North America. Neighbors of the industrial Swan Island operation expressed concerns about paint fumes and possible exposure to volatile organic compounds.

Over the course of several months, DEQ staff detected paint odors they attributed to Daimler, but only during 3 percent of their efforts.

Based on that finding, the department’s staff is recommending to an agency panel that it rule Daimler is not causing nuisance odors. The panel’s final decision is due Monday, unless DEQ grants Kotek’s request.

DEQ has not provided a formal response to the letter indicating any action and did not immediately respond to requests for comment.

The determination would be the first under the state’s newly developed strategy for nuisance odors. Kotek’s letter to regulators comes after a community meeting last week revealed several flaws in the state’s approach.

“My constituents who live above Swan Island and the [Daimler Trucks North America] facility are justifiably frustrated and feel abandoned by the agency,” Kotek wrote. “Now, more than ever, they expect the department to complete evidence-based investigations, utilizing all available credible data, to evaluate fully the negative impacts from regulated facilities. I expect nothing less as well.”

University of Portland researcher Ted Eckmann called the agency’s calculation “deeply flawed and meaningless.”

Eckmann’s own study — based on nearly 24,000 observations compared to the state’s 760 — documented an odor frequency in some areas as high 20 percent during winter months and pinpointed Daimler as the source.

Eckmann’s students detected industrial odors on 60 percent of the days they made observations.

The state’s effort suffered from sampling bias, he said: staff tested for odor most frequently during summer months and during the middle of the day — times with fewer odors and complaints.

“Your 3 percent is a mostly random number,” he told regulators. “It really means nothing.”

It would be akin to sampling only during dry summer months to show it rarely rains in Portland or only at night to show it’s always dark, he said.

DEQ employees were aware of the University of Portland’s study, but never sought to use the data in the nuisance odor determination. After seeing Eckmann’s presentation last week, DEQ staff said they would consider incorporating it into their determination.

At the community meeting, regulators defended their study but acknowledged resources limited their ability to take consistent samples throughout the year.

The state’s investigation required a significant commitment of resources and followed the guidelines in the state’s nuisance strategy, said Nina DeConcini, DEQ’s Northwest Region administrator. She also told community members the two studies found similar numbers in the overall frequency of paint odor.

“You may still find flaws and holes in it,” DeConcini told Eckmann. “But I think we get very close in terms of the conclusion.”

“No, we don’t,” Eckmann replied.

The state’s finding, however flawed, also highlighted another problem with the state’s strategy for nuisance odors: it’s a numbers game with no winning score.

In large part because its investigators detected odors just three percent of the time, DEQ determined Daimler could not be considered a nuisance.

Yet state regulators had no benchmark for what percentage would merit a nuisance determination, nor could they come up with a benchmark when legislators and community members repeatedly asked for one.

The way Oregon’s nuisance law has no objective criteria, making a numbers-based approach difficult, Brian Smith, coordinator of the nuisance odor program, said.

“You throw a number out there in advance … then if we found Daimler a nuisance it might look like ‘oh we just threw a number out there and then did a study to get us to that number so we could rig the system’,” Smith said. “But if we don’t put out a number, then it looks like we just made it squishy. There really is no way to win.”

The state has long required that companies do not become a nuisance to nearby communities, but for many years staff were unsure of how to enforce that rule. DEQ developed a nuisance odor strategy in 2014 largely in response to the situation on Swan Island.

Residents of the University Park neighborhood in North Portland have complained for years about paints and solvents drifting up from Swan Island, an industrial district along the east bank of the Willamette River.

“At some point you feel like ‘why am I doing this?’” University Park resident Adam Bartell said. “What more can I do if there is no remediation?”

Daimler spokesman David Giroux declined a request for an interview but said in a statement the company has taken many steps over the years to reduce emissions and that DEQ’s findings reinforce that Daimler is “part of the solution.”

Many neighbors have also complained about the Swan Island shipbuilder Vigor Industrial, but the company recently agreed to reduce certain emissions and cease its odorous treatment of bilge water as part of a “good neighbor agreement.” As a result, neighborhood complaints about Vigor have dropped off significantly.

North Portland residents tried and failed to persuade DEQ to establish nuisance odor controls in Daimler’s air quality permit when it was up for review in 2013. Negotiations for a good neighbor agreement and voluntary steps to reduce odor controls stalled with Daimler despite involvement from Kotek and other community leaders.

That left many feeling the state’s nuisance odor provision was their last hope.

“We have a company that is not going to change unless you force them to change,” Kotek told state regulators. “It seems like there is still an opportunity to not say that we’re done.”