10015 S.W.

Terwilliger Boulevard
Portland, Oregon 97219
Phone: (503) 768-6741 Fax: (503) 768-6671
ars@lclark.edu

February 14, 2020

Submitted via electronic mail

Oregon Department of Environmental Quality

Attn: Karen Williams
700 NE Multnomah St., Ste. 600
Portland, Oregon 97232

Re: Comments on Indirect Source Rule Petition

The Green Energy Institute at Lewis & Clark Law School, the Northwest Environmental Defense
Center, and Neighbors for Clean Air respectfully urge the Department of Environmental Quality
(DEQ) to recommend that the Environmental Quality Commission (EQC) adopt indirect source
rules for Oregon. Diesel pollution presents a serious threat to public health in Oregon and is a
major contributor to the global climate crisis. After conducting a thorough analysis of available
regulatory mechanisms to address this issue, we determined that indirect source rules present a
promising and feasible strategy to reduce emissions from some of Oregon’s largest sources of
diesel pollution. We petitioned the EQC to adopt the proposed indirect source rules, which
represent a starting point for what we hope will result in a deliberative, collaborative rulemaking
process.

Indirect source rules would help to mitigate a serious public health threat while also reducing
Oregon’s contribution to climate change. Diesel pollution currently presents a very real and
significant threat to public health and is responsible for hundreds of premature fatalities across
Oregon each year. The problem is particularly pronounced in Oregon’s urban areas. For example,
diesel pollution concentrations across the entire city of Portland far exceed levels deemed safe
for human health. This issue is particularly alarming from an environmental justice standpoint.
While all Portland residents are exposed to unhealthy levels of diesel exhaust, communities of
color—particularly those with large African American or Hispanic populations—may be
exposed to three times more diesel pollution than the average city resident.1 This is primarily
because there is a strong link between race and income in Oregon, and property values tend to be
lower near major roadways and large indirect sources of diesel pollution, such as freight
distribution centers, industrial facilities, and rail yards. As a result, the city’s historically
marginalized communities face even greater diesel-related health threats than most Oregonians.

1
MULTNOMAH COUNTY HEALTH DEPT., 2014 REPORT CARD ON RACIAL AND ETHNIC DISPARITIES 31 (2014),
https://multco.us/file/37530/download.
Oregon’s diesel pollution problems have grown in recent years as other West Coast jurisdictions
have taken action to improve air quality. California has long recognized the urgency of the diesel
pollution threat, and the state is in the process of phasing out older diesel vehicles and equipment
from California-based fleets. Some California air pollution control districts have also taken
action to reduce diesel pollution through indirect source regulations. Oregon, however, has thus
far failed to take action to effectively address its diesel pollution problems or proactively prevent
California equipment owners from dumping their old diesel engines into the Oregon market. As
a result, Oregon has experienced an influx of dirty diesel trucks and construction equipment in
recent years, and this problem is expected to increase as California continues to phase out older
engines.

The proposed indirect source rules present a practical and effective regulatory mechanism for
addressing Oregon’s diesel pollution problem for several reasons. First, the proposed rules would
enable Oregon to control aggregate emissions from a wide variety of vehicles and engines that
are not currently subject to regulation in the state, nor are likely to be subject to regulation in the
future under existing state policies. Second, the proposed indirect source rules avoid federal legal
constraints that limit Oregon’s authority to regulate emissions from individual mobile sources.
Third, the proposed indirect source rules would reduce diesel pollution and the associated
economic, environmental, and societal impacts while also providing flexibility to regulated
entities. And fourth, the proposed indirect source rules would provide regulatory uniformity and
prevent Portland’s diesel pollution problem from leaking to other cities across the state.

A. The proposed indirect source rules address emissions from vehicles and engines that
are not subject to regulation under existing state policies.

In 2019, the Oregon legislature took some action to address emissions from some sources of
diesel pollution in the Portland metropolitan area. While HB 2007 will not fully go into effect
until 2029, the legislation will eventually help phase out some of the older diesel trucks
registered in the Portland metropolitan area. However, HB 2007’s titling and registration limits
will only apply to a portion of the diesel vehicles and engines contributing to Oregon’s diesel
pollution problem. For example, HB 2007 will not affect emissions from trucks registered
outside the Portland metro area, nor from trucks that are proportionally registered in Oregon and
another state. In addition, HB 2007 does not apply to nonroad diesel equipment, which is the
largest categorical source of diesel exhaust in Portland and a major contributor to indirect source
emissions. Unless Oregon takes additional action to regulate mobile sources that are not covered
under HB 2007, indirect sources will continue to emit large, unmitigated quantities of diesel
pollution.

The proposed indirect source rules will help to fill Oregon’s regulatory gaps by addressing
emissions from indirect sources that attract vehicles and equipment that are not otherwise
covered under HB 2007, such as construction sites and warehouse distribution centers that send
or receive deliveries by trucks registered outside the Portland metro area. The proposed indirect
source rules are also designed to avoid duplicative or redundant regulation within the state. For
example, indirect sources in Portland could comply with both HB 2007 and the proposed rules
by transitioning to electric or new diesel trucks.

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 B. The proposed indirect source rules avoid preemption constraints under federal law.

Federal law restricts state and local authority to directly regulate tailpipe emissions from mobile
sources. For example, the Clean Air Act preempts Oregon from directly regulating emissions
from nonroad engines or new on-road vehicles. The proposed indirect source rules avoid these
legal constraints by regulating the aggregate emissions associated with certain facilities rather
than regulating emissions from individual vehicles or equipment. The Clean Air Act expressly
authorizes states to include indirect source rules (also known as indirect source review programs)
in their state implementation plans.2

The proposed indirect source rules also present a tool for addressing emissions from certain types
of facilities that emit large quantities of diesel pollution, yet are challenging to regulate under
federal law. For example, the Clean Air Act preempts Oregon from adopting its own emissions
standards for locomotives, yet allows states to regulate railyards as indirect sources of air
pollution.3 The Interstate Commerce Commission Termination Act of 1995 (ICCTA) also
preempts state laws that manage or govern railroad activity, yet do not preempt generally
applicable state regulations that do not unreasonably burden railroad activity.4 Because the
proposed rules are applicable to indirect sources in general and are designed to regulate
aggregate emissions from all vehicles and engines operating within or associated with indirect
sources of air pollution, including rail yards, the proposed rules should avoid preemption under
the Clean Air Act and the ICCTA.5

C. The proposed indirect source rules will help reduce the costly externalities
associated with diesel pollution while providing compliance flexibility to regulated
sources.

Diesel pollution currently imposes alarmingly high external costs on Oregon’s citizens. Based on
DEQ’s own estimates, diesel-related health and environmental impacts in Oregon total more than
$2 billion per year.6 If these costs were born evenly across the state, they would amount to nearly
$500 per year per resident. The vast majority of these costs are born by individual citizens who
have been exposed to unhealthy levels of diesel pollution over extended periods of time. While
workers employed in emissions-intensive industries face higher risks of developing diesel-related
health issues, the companies emitting this toxic air pollution are largely insulated from the cost
impacts associated with their activities. Under the state’s current regulatory system, Oregon
citizens are effectively forced to subsidize the industries responsible for poisoning the air they

2
42 U.S.C. § 7410(a)(5)(A)(i).
3
See Center for Community Action and Envt’l Justice v. BNSF Railway Co., 764 F.3d 1019, 1029 (9th Cir. 2014)
(clarifying that the Clean Air Act gives EPA exclusive authority to directly regulate locomotive emissions, and
expressly leaves authority to states to regulate railyards as indirect sources of air pollution.)
4
Ass’n of American Railroads v. South Coast Air Quality Management Dist., 622 F.3d 1094, 1098 (9th Cir. 2014).
5
In Association of American Railroads, the Ninth Circuit held that three South Coast Air Quality Management
District regulations were preempted under the ICCTA because the rules applied “exclusively and directly to railroad
activity,” and therefore were not rules of general applicability. Id. at 1098.
6
In 2015, DEQ estimated that diesel-related health and climate impacts totaled $1.874 billion per year in Oregon.
Adjusted for inflation, these estimated costs exceed $2 billion per year in 2020 dollars. OR. DEPT. OF ENVT’L
QUALITY, THE CONCERNS ABOUT DIESEL ENGINE EXHAUST 6 (2015),
http://www.oregon.gov/deq/FilterDocs/DieselEffectsReport.pdf.

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breathe. According to DEQ estimates, these hidden subsidies amount to between $3.00 to nearly
$5.00 per gallon of diesel fuel.7

If fleet owners were required to pay for the economic impacts associated with their emissions,
their annual costs could total more than $60,000 for every older diesel truck in their fleet.8
Construction contractors could incur costs of more than $28,000 per year for operating an older
diesel excavator.9 These economic impacts should be sending clear cost signals to incentivize a
transition to cleaner vehicles and engines. Unfortunately, however, Oregon’s existing regulatory
system allows diesel equipment owners to push these costs onto the victims of air pollution
exposure, thereby passing costs to individuals that lack any power to effectively mitigate
negative impacts.

The proposed indirect source rules aim to address some of these economic imbalances while also
providing a degree of compliance flexibility to regulated sources. Rather than mandate that every
indirect source upgrade their equipment by a certain date, the proposed rules would allow
regulated entities to select compliance mechanisms that make the most sense for their specific
facilities and business models. This flexibility would help reduce compliance burdens while still
ensuring improvements in air quality, particularly in the local communities that are
disproportionately impacted by diesel pollution.

D. Indirect source rules should apply in large urban areas across the state to provide
regulatory uniformity and prevent Portland’s diesel pollution problem from leaking
to other cities.

Portland and Multnomah County have already taken action to reduce diesel pollution in the
metro area, and the proposed indirect source rules would build off these existing efforts and
prevent Portland’s pollution problem from leaking to other Oregon jurisdictions. The City of
Portland and Multnomah County collaborated with Metro and the Port of Portland to develop
uniform clean diesel construction standards for public contracts.10 In 2021, contractors that work
on public projects in Portland and Multnomah County must start phasing out their older
construction equipment, and by 2026, all vehicles and nonroad equipment used on public
projects must meet the most stringent federal emissions standards currently in effect. Indirect
source rules would help ensure that phased-out older diesel engines do not continue to operate in
the metro area, by deterring private contractors from purchasing old equipment from public
contractors. Indirect source rules that apply uniformly in urban areas across the state would also
help prevent leakage issues that could result as older diesel trucks and construction equipment
7
Id. at 8.
8
According to DEQ estimates, a representative diesel truck creates $56,398 in health-related costs and $4,036 in
climate-related costs each year. Id. (cost estimates adjusted to 2020 dollars).
9
According to DEQ estimates, a representative diesel excavator creates $26,644 in health-related costs and $1,907
in climate-related costs each year. Id. (cost estimates adjusted to 2020 dollars).
10
See City of Portland Bureau of Planning and Sustainability, City of Portland Commits to Clean Air Construction
Standard (Dec. 13, 2018), https://www.portlandoregon.gov/bps/article/706766; Multnomah County, Portland Aims
to Cut Deadly Emissions, Commits to Cleaner Diesel on Public Construction Sites (Dec. 13, 2018),
https://multco.us/multnomah-county/news/portland-aims-cut-deadly-emissions-commits-cleaner-diesel- public-
construction. As of February 14, 2020, the City of Portland and Multnomah County have adopted Clean Air
Construction Requirements. City of Portland Bureau of Revenue and Financial Services, Clean Air Construction
Requirements, https://www.portlandoregon.gov/brfs/article/733321.

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are phased out in the Portland area. Unless Oregon takes action to establish a certain degree of
regulatory uniformity among its urban areas, Portland may inadvertently export its diesel
pollution problem to other Oregon cities.

Indirect source rules that apply uniformly in urban areas across the state would provide
regulatory certainty to covered sources and help establish clear market signals to facilitate a
transition to cleaner vehicles and equipment. In contrast, indirect sources rules that only apply in
the Portland metro area could create a race to the bottom by incentivizing indirect sources in
other Oregon cities to hoard old, dirty diesel trucks and construction equipment. This scenario
could cause the growing diesel-related public health crisis to explode across the state, and would
only serve to cement Oregon’s reputation as a dumping ground for dirty diesel engines.

CONCLUSION

Diesel pollution currently contributes to the deaths of hundreds of Oregonians each year and puts
a large portion of the state’s population at risk of developing cancer, heart disease, or serious
respiratory ailments. Black carbon from diesel exhaust also significantly increases Oregon’s
contributions to global climate change. Much of this harmful pollution is emitted from mobile
sources operating within or associated with indirect sources of air pollution. Indirect source rules
are a practical and effective regulatory mechanism for reducing diesel emissions from these
facilities. We strongly urge DEQ to support the development and adoption of effective indirect
source rules for Oregon by recommending that the EQC approve our petition for rulemaking.

Sincerely,

Amelia Schlusser
Staff Attorney, Green Energy Institute

Mark Riskedahl
Executive Director, Northwest Environmental Defense Center

Mary Peveto
Executive Director, Neighbors for Clean Air