Bullseye 3.4.16 DRAFT

1. Bullseye Glass Co. (Bullseye) owns and operates a glass manufacturing facility located at 3722 SE 21^st Avenue, Portland, Oregon, 97202 (the Facility).

b. The Facility currently has an Air Contaminant Discharge Permit and DEQ has no knowledge of any violations of this permit.

c. Typically, the Facility used the following elements in the production of glass: arsenic, cadmium, chromium III, chromium VI, lead, manganese, cobalt and nickel.

d. DEQ’s air monitoring results detected elevated levels of some of these metals in the vicinity of the Facility.

e. Following a request by DEQ, Bullseye voluntarily suspended the use of arsenic and cadmium.

f. On February 11, 2016, DEQ requested that Bullseye suspend use of chromium as a raw material in its production of glass at the Facility.

g. On February 12, 2016, Bullseye agreed to suspend use of chromium at its Facility.

h. Bullseye has continued to operate without the use of arsenic, cadmium and chromium as of the date of this executed agreement.

3. DEQ and Bullseye enter into this agreement during an interim period prior to the development of new air toxics regulations.

5. For the purpose of this agreement, the following terms will have the given meanings:

a. “Chromium III” means chromium in the +3 oxidation state, also known as trivalent chromium;

b. “Chromium VI” means chromium in the +6 oxidation state, also known as hexavalent chromium;

c. “Chromium”, without a following roman numeral, means chromium in any oxidation state;

d. “Cullet” means recycled glass that is mixed with raw materials and charged to a glass melting furnace to produce glass. Cullet is not considered to be a raw material for the purposes of this agreement.

e. “Raw material” means minerals, such as silica sand, limestone, and dolomite; inorganic chemical compounds, such as soda ash (sodium carbonate), salt cake (sodium sulfate), and potash (potassium carbonate); metal oxides and other metal-based compounds, such as lead oxide, chromium oxide, and sodium antimonate; metal ores, such as chromite and pyrolusite; and other substances that are intentionally added to a glass manufacturing batch and melted in a glass melting furnace to produce glass. Metals that are naturally-occurring trace constituents or contaminants of other substances are not considered to be raw materials. Cullet and material that is recovered from a furnace control device for recycling into the glass formulation are not considered to be raw materials for the purposes of this agreement.

a. Bullseye must install one or more emission control devices to control any furnace that uses any of the following metals: arsenic, cadmium, chromium, cobalt, nickel, manganese, or lead; and

b. Each emission control device must comply with a minimum removal efficiency of 99.0% for particulate matter as measured by DEQ Method 5.

7. Bullseye must not use arsenic, cadmium or chromium VI in raw materials in any glass-making furnace that is not controlled by an emission control device approved by DEQ.

8. Bullseye must limit the use of the metals listed in Table 1 in raw materials as follows:

a. This limitation applies to all furnaces that are not controlled by an emission control device approved by DEQ;

b. In any week, Bullseye must use no more than the listed Maximum Weekly Usage for that metal in raw materials;

i. This limitation applies to the total usage of that metal in raw materials in all glass-making furnaces that are not controlled by an emission control device approved by DEQ; and

ii. This limitation applies to the weight of the metal itself in raw materials, not the weight of the compounds that contain the metal.

c. Bullseye must reduce or cease use of metals in raw materials as provided in paragraph 10.

Metal	Reduce Use Level (ng/m³)	Stop Use Level (ng/m³)	Maximum Weekly Usage, pounds per week	Reduction Step 1, pounds per week	Reduction Step 2, pounds per week	Reduction Step 3, pounds per week
Chromium III as related to levels of Chromium VI in air ¹	0.8 ^a	1.6 ^a
Nickel ²	40	80
Cobalt ³	50	100
Manganese ⁴	45	90
Lead ⁵	150	150

1 = The Stop Use Level for chromium VI is 20 times the DEQ Ambient Benchmark Concentration (ABC), The ABC is based on a cancer risk of one potential occurrence of cancer in a population of 1 million people (1 x 10^-6). Twenty times the ABC results in a concentration based on a cancer risk of 20 potential occurrences of cancer in a population of one million people (2 x 10^-5). The Reduce Use Level is set at half of the Stop Use Level, with a related cancer risk of 10 potential occurrences of cancer in a population of one million people (1 x 10^-5).

a = If chromium VI levels in air are found to exceed either Action Level for chromium VI, then the facility will reduce or stop use of chromium III in their operations. Chromium III is limited because chromium III may form hexavalent chromium under certain circumstances.

2 = The ABC of 4 ng/m3 for nickel refinery dust is based on a cancer risk of one potential occurrence of cancer in a population of 1 million people (1 x 10^-6). The Stop Use Level for nickel is 20 times the ABC, which is related to a cancer risk of 20 potential occurrences of cancer in a population of 1 million people (2 x 10^-5). The Reduce Use Level is 10 times the ABC, which is related to 10 potential occurrences of cancer in a population of 1 million people (1 x 10^-5).

3 = The Stop Use Level for cobalt is set at the ABC for cobalt. The ABC for cobalt is based on the non-cancer limit of a Hazard Quotient of 1. This is the level above which adverse non-cancer health effects are expected to occur. The Reduce Use Level is based on half the Stop Use Level.

4 = The Stop Use Level for manganese is set at the ABC for manganese. The ABC for manganese is based on the non-cancer limit of a Hazard Quotient of 1. This is the level above which adverse non-cancer health effects are expected to occur. The Reduce Use Level is based on half the Stop Use Level.

5 = Both the Stop Use and Reduce Use Levels are set at the ABC for lead, which is also the National Ambient Air Quality Standard and a level determined to be protective of neurological health effects.

The ranges listed in Table 1 have been reviewed by and are acceptable to the Oregon Health Authority as protective.

9. Bullseye must not use more than the amount of chromium III specified under Reduction Step 1 in Table 1 in raw materials. Bullseye may increase the use of chromium III in raw materials to the maximum weekly usage of chromium III listed in Table 1 upon notification that they may do so by DEQ.

a. DEQ will notify Bullseye that they may increase usage if ambient monitoring data of chromium VI for the first two weeks following the full execution of this agreement is 10 percent or more below the Reduce Use Level listed in Table 1.

b. If the ambient monitoring of chromium VI is at or above the Reduce Use Level in Table 1, DEQ will notify Bullseye to reduce usage of chromium III to Reduction Step 2. Thereafter, the maximum weekly usage of chromium III will be as specified in paragraph 10.

10. Notwithstanding Paragraph 9, prior to installation of all emission control devices required in Paragraph 6, in the event that bi-weekly averages of ambient monitoring data exceed an Action Level listed in Table 1, Bullseye must reduce or stop usage of each metal for which an Action Level was exceeded as specified below:

i. The term “monitored level” means the rolling bi-weekly average of the ambient monitoring data of the metals listed in Table 1 from monitors located within 0.4 mile radius of the Facility;

ii. The rolling bi-weekly average will be based on the most recent two weeks of monitoring;

iii. The minimum data set required to calculate a bi-weekly average must have at least five daily values for each week; and

b. The requirements in this paragraph apply to each metal listed in Table 1 on an individual metal basis. A requirement to reduce or stop usage of one metal does not apply to the other metals; however, the requirement to reduce or stop usage may apply individually to multiple metals.

i. If the monitored level of any of the metals in Table 1 exceeds the Reduce Use Level, Bullseye must reduce the use of the identified metal in raw materials in uncontrolled furnaces to Reduction Step 1 upon being notified to do so by DEQ. The requirement to reduce usage applies to the week following the week in which notification was given.

ii. If a second consecutive monitored level of any of the metals in Table 1 exceeds the Reduce Use Level, Bullseye must reduce the use of the identified metal in raw materials in uncontrolled furnaces to Reduction Step 2 upon being notified to do so by DEQ. The requirement to reduce usage applies to the week following the week in which notification was given.

iii. If a third consecutive monitored level of any of the metals in Table 1 exceeds the Reduce Use Level, Bullseye must reduce the use of the identified metal in raw materials in uncontrolled furnaces to Reduction Step 3 upon being notified to do so by DEQ. The requirement to reduce usage applies to the week following the week in which notification was given and all following weeks until DEQ provides notification that the monitored level is again below the Reduce Use Level in Table 1.

iv. If the monitored level of any of the metals in Table 1 exceeds the Stop Use Level, Bullseye must stop using the identified metal in raw materials in uncontrolled furnaces upon being notified to do so by DEQ. The requirement to stop usage applies to the week following the week in which notification was given and all following weeks until DEQ provides notification that the monitored level is again below the Reduce Use Level in Table 1. In the event that DEQ requires Bullseye to stop using a metal in raw materials three times pursuant to this subparagraph, Bullseye must stop using the metal in raw materials in uncontrolled furnaces.

v. Following any requirement to reduce or stop usage of a metal in raw materials, Bullseye may resume usage of that metal in raw materials at the Maximum Weekly Usage level of that metal after DEQ provides notification that the monitored level of that metal is again below the Reduce Use Level. Bullseye may resume usage in the week following the week in which notification is given and all following weeks until Bullseye is required to reduce or stop usage again.

vi. DEQ notifications will be provided no later than 12 PM on Friday and will affect the following week. Notification will be by email or facsimile and DEQ will attempt to confirm receipt by phone.

a. The design of all emission control devices must be approved by DEQ before installation.

b. Bullseye must submit a Notice of Intent to Construct in accordance with OAR 340-210-0205 through 340-210-0250 no later than 15 days prior to the date installation begins. If DEQ does not deny or approve the Notice of Intent to Construct within 10 days of receipt of the Notice, the Notice will be deemed to be approved.

d. Each emission control device must be equipped with the monitoring device or devices specified by DEQ in DEQ’s approval of the Notice of Intent to Construct required in subparagraph b.

e. Each emission control device must be equipped with inlet ducting that provides the following:

i. Sufficient cooling of exhaust gases to no more than the maximum design inlet temperature under worst-case conditions; and

ii. Provision for inlet emissions testing, including sufficient duct diameter, sample ports, undisturbed flow conditions, and access for testing.

f. Each emission control device must be equipped with outlet ducting that provides for outlet emissions testing, including sufficient duct diameter, sample ports, undisturbed flow conditions, and access for testing.

g. After commencing operation of any emission control device, Bullseye must observe and record the parameters specified by DEQ in DEQ’s approval of the Notice of Intent to Construct, required in subparagraph b.

h. Bullseye must perform the following source testing on at least one controlled furnace approved by DEQ to demonstrate compliance with the removal efficiency requirement in Paragraph 6:

i. Within 60 days of commencing operation of the emission control devices, test control device outlet for chromium VI using a DEQ approved test method while making a glass that represents a maximum usage of chromium;

ii. Within 60 days of commencing operation of the emission control devices, test control device inlet and outlet for particulate matter using DEQ Method 5 or comparable method;

iii. A source test plan must be submitted at least 30 days before conducting the source test; and

iv. The source test plan must be approved by DEQ before conducting the source test.

12. There are no restrictions on the raw materials that may be used in a glass-making furnace that is controlled by an emission control device approved by DEQ.

13. Notwithstanding this agreement, Bullseye will be subject to any rules adopted by the Environmental Quality Commission.

14. In the event that Bullseye breaches this agreement, the parties agree that the impact on the public health or the environment would be diffuse, difficult to determine, and that an alternative remedy would be infeasible. The parties agree that the following stipulated damages are a reasonable approximation of the anticipated or actual impact of each breach. Upon receipt of a written DEQ finding that Bullseye has breached a provision of this agreement, Bullseye agrees to pay the following stipulated damages:

a. $1,600 for each day that Bullseye breaches any compliance requirement detailed in Paragraphs 6 and 7 of this agreement; and

b. $800 for each breach of any of the maximum weekly usage levels or reduction or stop levels in Table 1.

15. If any event occurs that is beyond Bullseye’s reasonable control that causes or may cause a delay or deviation in performance of the requirements of this agreement, Bullseye must promptly notify DEQ verbally of the cause of delay or deviation and its anticipated duration, the measures that have been or will be taken to prevent or minimize the delay or deviation, and the timetable by which Bullseye proposes to carry out such measures. Bullseye must confirm in writing this information within five (5) working days of the onset of the event. It is Bullseye’s responsibility in the written notification to demonstrate to DEQ’s satisfaction that the delay or deviation has been or will be caused by circumstances beyond the reasonable control and despite due diligence of Bullseye. If Bullseye so demonstrates, DEQ will extend times of performance of related activities under this agreement as appropriate. Circumstances or events beyond Bullseye’s control include, but are not limited to, acts of nature, unforeseen strikes, work stoppages, fires, explosion, riot, sabotage, or war. Increased cost of performance or consultant’s failure to provide timely reports will not be considered circumstances beyond Bullseye’s reasonable control. However, delay in DEQ approval of documents due to no act or omission of Bullseye’s will be considered circumstances beyond Bullseye’s control.

16. DEQ reserves the right to enforce this agreement through appropriate administrative and judicial proceedings.

17. DEQ and Bullseye may amend the terms of this agreement only by mutual written agreement.

18. Bullseye agrees that this agreement shall be binding on Bullseye and its respective successors, agents, and assigns. The undersigned representative of Bullseye certifies that he or she is fully authorized to execute and bind Bullseye to this agreement. No change in ownership or corporate or partnership status relating to the Facility will, in any way, alter Bullseye’s obligation under this agreement, unless otherwise approved in writing by DEQ.

19. All reports, notices and other communications required under or relating to this agreement should be sent to: Air Quality Section, DEQ Northwest Region Office, 700 NE Multnomah St., Suite 600, Portland, OR 97232. The contact person for Bullseye is: Eric Durrin, 3722 SE 21^st Avenue, Portland, Oregon 97202 and Jeff Hunter, Perkins Coie, LLP, 1120 NW Couch Street, 10^th Floor, Portland, OR 97209-4128.

20. Bullseye acknowledges that it has actual notice of the contents and requirements of this agreement and that failure to fulfill any of the requirements hereof will constitute a violation of this agreement and will subject Bullseye to payment of stipulated damages.

21. Any stipulated damages imposed pursuant to Paragraph 14 are due upon written demand. Stipulated damages must be paid by check or money order made payable to the "State Treasurer, State of Oregon" and sent to: Business Office, Department of Environmental Quality, 811 SW Sixth Avenue, Portland, Oregon 97204.

22. This agreement will terminate in 5 years of the date this agreement is fully executed, or upon issuance of a permit that incorporates the provisions of new air toxics regulations adopted by the Environmental Quality Commission, or at mutual agreement of the parties, whichever is sooner, and on condition that Bullseye has paid all stipulated damages required by Paragraph 14.

23. Provided that Bullseye complies with the provisions of this agreement, DEQ agrees not to take enforcement action at this time related to Bullseye’s emissions of metals in Table 1.

24. This agreement is not intended to limit, in any way, DEQ's right to proceed against Bullseye in any forum for any past or future violations not expressly addressed herein.

2016-03-03T16:17:00
[P4]
PCAdmin
Mon. likely to continue thru 9/1, probably daily.