Eugene Weekly : 02.03.05

Making a Stink

A COMMUNITY NEAR THE BAXTER PLANT STRUGGLES FOR AIR.

By Sarah Gianelli

Sunshine was streaming through the picture windows into Kimm Marshall's living room and the sky was a crisp blue, a rare treat for valley-bound Oregonians in December. Side-stepping his nieces and nephews, Marshall gathered up a garbage bag of crumpled wrapping paper and stepped outside to put it with the trash. That's when the stench hit him. Thick, oily fumes engulfed his property like an invisible fog. "Not on Christmas Day," he thought.

KIMM MARSHALL

For the rest of the day, the Marshalls remained sequestered inside. Marshall was furious; he and his family simply couldn't go on living this way any longer.

Marshall's home is about 300 yards from J.H. Baxter & Co., a plant on Roosevelt Boulevard that treats wood primarily for industrial use, such as utility poles and railroad ties. The petroleum-based chemicals they use — creosote and pentachlorophenol (penta) — do not only smell bad. Along with a host of unsavory health effects, the EPA has classified creosote and penta as probable human carcinogens.

The recent appearance of a rare, aggressive form of cancer in multiple residents living near J.H. Baxter has heightened community concerns. Now residents are not only frustrated by the unpleasant odor, they're fearful that breathing it may pose a serious threat to their health.

After spending Christmas 2002 trapped inside, Marshall decided to take action. He began keeping an odor log and calling in complaints to the Lane County Regional Air Pollution Authority (LRAPA). Nearly two years later, Marshall sits at a table in his living room thumbing the pages of his inch-thick odor log with a mix of pride and resignation.

As we step through the sliding glass doors onto a patio crammed with exotic plants, Marshall pauses, tips his head back and sniffs. "There it is."

The odor is undeniable. The scent of hot tar wafts in varying intensities through the air. "And that's only about a 2," Marshall scoffs, his voice raspy. "Believe me, that's nothing." To Marshall, a "10" indicates watering eyes, difficulty breathing and a foul taste in his mouth. "You don't want to be out in it," he says. "It's nauseating."

Other residents of the Bethel, Trainsong and River Road neighborhoods complain of burning eyes and throat, dizziness, headaches and respiratory problems — symptoms corroborated by people living adjacent to wood treatment plants across the country.

At J.H. Baxter, creosote (a complex mixture of at least 200 chemical compounds) and penta are heated and driven deep into the grain of wood in high pressure vessels called retorts. During and after the treatment process, a highly odorous portion of these chemicals is released into the air.

Essentially, these chemicals are pesticides. By inhibiting the survival of insects and fungi, they extend the life-expectancy of wood products up to 50 years. These chemicals or their components have also been shown to destroy the lungs, burn the skin, damage the liver, kidneys and nervous system, and travel across the placenta to cause birth defects in an unborn fetus. Creosote and inorganic arsenic compounds have been shown to cause cancer in humans, penta in lab animals.

Although the use of these wood preservatives has been severely restricted, Beyond Pesticides, a national nonprofit organization headquartered in Washington D.C., has sued the EPA for continuing to allow their widespread use in industrial applications despite the availability of viable, safer alternatives. The lawsuit is ongoing.

Marshall has a hot tub and an observatory with a roll-back roof in his back yard. "I don't get to use them as much as I'd like because of the fumes," he says. "They move in unexpectedly, all hours of the day and night."

Many residents say the fumes are worse at night. The conspiracy theorists among them believe that Baxter purposefully releases the bulk of its emissions when LRAPA cannot verify the complaints. Former LRAPA director Brian Jennison (who resigned in Jan. 2005) waves that off. "People are more sensitive to the smell at night for a variety of reasons," he says. "Baxter is a 24/7 operation. They stink all the time."

LRAPA has been working with J.H. Baxter to reduce the foul smelling emissions since 1995. Since then, Baxter has been making incremental, and apparently insufficient, fixes targeted at potential sources of the odor. In the meantime, residents have to stick their noses outside to test the air every time they want to go for a walk, open their windows or sit in their yards.

Marshall's yard contains a walnut tree, an apple tree, two cherry trees, two pear trees, a plum tree, blueberry bushes, and a variety of grape and kiwi vines. The problem is Marshall doesn't know if the fruit is safe to eat. Within months of moving into the house, he received a notice from the Oregon Department of Environmental Quality (DEQ) advising him not to use his well water until further notice. He found out that a plume of groundwater contaminated with arsenic, copper compounds, and penta extended from the Baxter plant beneath his property.

In 1993 Baxter installed a pump-and-treat system to draw the plume back, but the plume isn't getting any smaller. As of 2003, it still extended approximately 2,500 feet west and northwest of the plant. The DEQ isn't very concerned because all of the homes in the area are on city water.

The DEQ has also found unacceptable levels of arsenic in the soil both on and off Baxter's property. In 1999, approximately 400 cubic yards of soil contaminated with above-risk concentrations of arsenic were excavated from three adjacent lots.

CAROLYN LODGE

Out of seven wood treatment plants owned, co-owned, or previously owned or operated by J.H. Baxter, three of them have been on the National Priorities List, which lists facilities eligible for clean-up under the Superfund program. This kind of contamination is typical of the wood preserving industry. Like Baxter's Eugene plant, which opened in 1943, many of these properties incurred the bulk of their contamination prior to the 1970s, when there were no regulations or restrictions on waste disposal.

Geoff Brown, DEQ project manager for J.H. Baxter's ground and water clean-up plan, met with me in a small, stuffy conference room in DEQ's Eugene offices. "Generally speaking, we do not believe people are being exposed to constituents at unacceptable risk levels through the soil or groundwater," he says carefully. "Of course, there is no way to say 100 percent for certain that there's no risk there. What we're saying is that the risks we are seeing are very small."

Toxicologists admit that risk assessment rides on a lot of uncertainty. For one, the very system that determines how much of a pollutant can be emitted into the environment before constituting a health risk fails to take into account multiple, simultaneous exposures, a reality of living in today's world — if not for everyone, certainly for residents living near J.H. Baxter.

"In the beginning, nobody wanted the plant shut down," Marshall says, standing next to four concrete tanks he's turned into raised vegetable beds to protect his produce from any contaminated soil that might be below.

When Marshall began making calls to LRAPA back in 2002, he found out he wasn't alone. Seventy-three complaints had been logged against J.H. Baxter that year. LRAPA was asking residents to be patient.

Back then, plant manager Gary Hunt, a florid-faced man with a white beard gone rusty over his upper lip, seemed eager to work toward a mutually satisfactory resolution. But as time dragged on, frustrations mounted. From the perspective of the residents, Hunt slowly withdrew behind a wall of lawyers and company-hired consultants. To this day, Baxter representatives maintain that they are doing everything in their power to alleviate the problem and, pointing to their own industry-funded research, deny any connection between the odor and adverse health effects.

By August of 2003, things were heating up. Neighborhood residents showed up at LRAPA's monthly board meeting to voice their concerns. At the same time, a long-time neighborhood resident who lives around the corner from Marshall was about to begin a battle with cancer.

Fifty-four-year-old Carolyn Lodge greets me at the front door of her small, one-story home in a black velour sweatsuit. "I used to have long straight blonde hair," she says welcoming me inside. "But this stuff" she says, making a face and scrunching her short, frosted curls, "grew in after the chemo."

Lodge and her husband moved in approximately one quarter mile from J.H. Baxter in 1979. When her husband left after 23 years of marriage, Lodge sank into a deep depression increasingly accompanied by aches, pains and exhaustion. After years of writing off her ailments as symptomatic of her depression, Lodge finally saw a doctor.

A blood test administered on Aug. 19, 2003 showed a dangerously low red blood count. "They said if I would've taken a nap or lied down, I probably wouldn't have woken up."

Lodge was diagnosed with acute myelogenous leukemia (AML), a malignant disease of the bone marrow that quickly moves into the blood and organs. AML usually lands people in chemotherapy immediately because it can prove fatal within days or weeks of diagnosis.

While Lodge was in the hospital she found out that another man was hospitalized with the same disease. He happened to live a few blocks away from Lodge, also in close proximity to the plant. "My oncologist, Dr. Jae Lee [who was treating both patients], told me it was very odd to see two cases of this type of cancer so close together," she says. "He said that me getting it was like being struck by lightning, and both me and [my neighbor] getting it was like us both being struck by lightning."

Lodge is one of three confirmed cases of AML in the neighborhood. "And that's just this one kind of cancer," she says. She can count at least four cases of cancer on her block alone. Was her cancer caused by the Baxter plant's emissions? Lodge has her suspicions, but causality is nearly impossible to prove.

Recinda Sherman-Seitz is the head research analyst for the Oregon State Cancer Registry, an arm of the Oregon Department of Human Services. While she admits that AML is "very rare," she says the likelihood of statistically linking the cases of AML to J.H. Baxter is next to none. "We know that smoking causes the vast majority of lung cancer," she says. "We still can't say, 'You are definitely going to get lung cancer if you smoke,' but that doesn't stop us from trying to discourage smoking."

Lodge has been in remission since January, but she's the only one of her neighbors afflicted with the disease who has stayed in remission. "If I'm the only healthy one, I'll squawk for all us," she promises, as I walk back into the gray day where the faint odor of creosote hangs in the air.

THE J.H. BAXTER PLANT

By September 2003, tension was growing between LRAPA board members, some of whom clearly sympathized with the rights of residents, and others who sympathized with the rights of industry.

Caught in the middle was Jennison. At the residents' urging, he arranged for the Oregon State Department of Human Services to conduct a public health consultation to learn whether the odor constituted a health hazard or only a nuisance. A team of state toxicologists came down from Portland, listened to the public's concerns and began their study. But in May 2004, the Department of Human Services report came back inconclusive. A total lack of air sampling data made it impossible to determine whether the odor presented a risk to human health.

The residents had one last hope. In 2001, LRAPA adopted a nuisance ordinance that would allow the agency to fine J.H. Baxter up to $10,000 for each verified complaint. By the end of 2004, the total number of complaints logged against J.H. Baxter that year would reach 700. To some it seemed certain that the company would be fined under the nuisance ordinance any day.

By late summer, the LRAPA meetings were not only packed with concerned residents but also with steadfast Baxter employees and union sympathizers eager to air their countering views.

Baxter employees insist that no one is getting sick at their plant and remind those concerned that the company is within all regulatory standards. Oregon's Occupational Safety and Health Administration (OSHA) concurs that, with the exception of minor inspection violations, J.H. Baxter has been in compliance with worker safety regulations.

Baxter employees did not respond to inquiries for comment. Before ceasing contact with me altogether, Hunt did provide a hurried tour of the plant.

"Now, before we go out into the yard you're gonna have to take a little safety course," Hunt warns, standing in his office in one of the low-slung white and green cottages that comprise Baxter's administrative buildings.

He introduces me to Carolyn Ferrel, Baxter's environmental health and safety supervisor, who patiently runs through an overview of what Baxter does and the chemicals they use. Before I head out into the yard, Ferrel warns me to stay out of the puddles and to wash my hands and face thoroughly before eating. "Our employees aren't dropping dead," she says, chuckling nervously, "but we figure the less chance of contamination the better."

Outside, the sky is bright white and the winds are gusty and strong, blowing dust and sediment up in my face. Instinctively, I want to hold my breath.

Stacks of treated wood and open aluminum sheds cover most of the plant's 42 acres. The open air is dense with fumes. Hunt walks over to a green-tinted stack of lumber and says, "This here was treated with ACQ." Ammonia copper quat is a "green" water-borne product that doesn't contain arsenic. "Baxter received an award for being the first plant in the West to use it," he says proudly. But he admits "due to low customer demand," only 8 or 9 percent of their output is treated with this product.

In an area of upright holding tanks, Hunt points out all the new equipment they have installed to try to fix the problem — scrubbers, condensers, and a vacuum system designed to capture and recycle vapors. "All in all, we've spent $400,000 on attempts to fix the problem," he says.

Standing in an open area of muddy puddles that I'm careful to stay out of, Hunt's demeanor softens ever so slightly. "You know, we've been here since 1943. We're paying for the sins of the past. The city planners are the ones who decided to put homes right next to heavy industry. We've been trapped by circumstances we can't control."

By the end of the tour, a dry spot has formed in the back of my throat and there's a very slight burn in the corner of my eyes. When I leave, the strong scent of petroleum comes with me, trapped in my hair. Is it just a bad smell? Or are the tiny particles that constitute the odor causing me harm? Not knowing might be worst of all.

The October 2004 LRAPA board meeting is about to begin in the uncomfortably small boardroom that a handful of dedicated community members have gotten to know quite well over the past two years. Marshall, in dark blue jeans and his signature brass belt buckle, is the first to stand and address the board.

"Since I last spoke to the board last month, I reported to your complaint line eight times. That's one quarter of our family time trapped in our home with the windows closed. And J.H. Baxter and this board continue to argue over whether there is an odor problem."

When he sits down, a thin woman with jaw-length gray-blond hair stands up. Leslie Maguire has also become a regular fixture at the LRAPA meetings. She looks beseechingly at the board with intense blue eyes before beginning to read her statement. "I haven't opened my windows at night for nearly two years. I miss fresh air. I'm unable to have friends visit or conduct business meetings without the threat of Baxter's stench interrupting. I don't dare exercise outdoors. Baxter's foul recurring presence robs me from ever fully relaxing in my home and neighborhood. How is it that a company is allowed to continue emitting odors of this magnitude with such severity of impact on the community?"

Moments later the residents learn that instead of issuing a nuisance fine, LRAPA will enter into another long-term agreement (called a Best Works Practices Agreement) that will outline specific engineering plans aimed at reducing the odors.

"I don't see why you have to wait for the Best Works Practices Agreement to be signed before instituting better practices," snaps Eugene City Councilor Betty Taylor.

When LRAPA moves on to the next item on their agenda, John Morrisey, the LRAPA staff member in charge of complaints and enforcement, follows the frustrated residents outside. He explains that Baxter will work on capturing the fumes escaping from the creosote holding tanks. Treated wood will continue to sit out in the open, and the penta side of the treatment process will not be looked at. Once the agreement is signed (negotiations have been ongoing since 2003), Baxter has 120 days before the alterations need to be in place.

"So we're looking at another year before the actual nuisance is addressed?" Maguire asks in disbelief. In reality it could be much longer, Morrisey explains. As long as LRAPA and J.H. Baxter are engaged in a formal agreement, LRAPA cannot cite the plant as a nuisance. If the odor problem continues after the fixes are made, LRAPA will revisit the agreement and it's likely the whole process will begin all over again.

"Well, thanks for clearing the air, John," Marshall says with a smirk.

"I'm glad to see you still have your sense of humor, Kimm."

"That's about all I got."

After the meeting, I meet with Jennison in the empty boardroom. Although the slightest movement causes the rotund Jennison to huff and puff, a playful sarcasm colors his words as he begins to talk about all the forces that have rendered LRAPA an ineffective agency in the eyes of some citizens and even some of LRAPA's own employees. "You read the state odor nuisance regulation and realize that it's biased toward industry," he says. "I can't fine them because then I would be seen as not following the rules. And you don't want to be seen to be picking on industry, especially during a recession."

In Jennison's opinion, J.H. Baxter has been doing the minimum necessary to remain in operation. "Baxter is an old facility. I don't want to punish them. I just want them to stop hurting citizens," he says. "If people are going to live in an industrial neighborhood, the industry should adjust to the people."

LRAPA has recently commenced a series of tests of the toxicity of the air in the neighborhoods surrounding J.H. Baxter. However, air testing is notoriously tricky and, at $2,000 per sample, extremely expensive. A grant proposal that might have provided LRAPA an additional $50,000 was disqualified last week by the Lane County Economic Development Standing Committee because the funds are not intended for studies. The grant proposal was submitted by the Lane Metro Partnership in an effort to protect the 55 jobs at J.H. Baxter by resolving the long-standing conflict.

Jennison's advice to the residents is to take J.H. Baxter to court. He cites a similar instance where LRAPA was not able to resolve an odor issue between Monaco Coach Corp. and nearby residents complaining of paint fumes. The neighbors took the company to court; Monaco settled, and both parties got what they wanted.

But Jennison points out one major difference. Those residents had money. "And you know what they say: 'Freedom and justice for all … who can afford it.'"

Lodge, keeping true to her promise to fight for all the cancer victims if she's the only one with the strength to do so, has convinced a Eugene law firm to investigate grounds for a personal injury case against J.H. Baxter. The Oregon Toxics Alliance, a statewide nonprofit committed to galvanizing community efforts involving toxic concerns, is also seeking an attorney to represent the neighbors on the grounds of chemical trespass.

Jennison thinks there's no reason why the residents wouldn't win in court. "If it looks like a duck and it quacks, how many complaints could it possibly take?"

On a cool, colorless winter day, Marshall walks toward his dead-end. A bike path, a watery ditch, and a two-lane highway separate him from J.H. Baxter, a clutter of aluminum sheds the size of airplane hangars, two-story cylindrical tanks and stacked wood.

Before turning back to his house, Marshall points to a spinning wind monitor that LRAPA put in place to verify complaints. The distinct odor of hot tar lingers in the air. "You see?" he says. "It's clearly coming this way." For now, he'll have to settle for small moments of validation like these.