Rule Number and Title

Amend OAR 340-200-0030: General Air Pollution Procedures and Definitions - Exceptions

Amend OAR 340-200-0040: General Air Pollution Procedures and Definitions - State of Oregon Clean Air Act Implementation Plan

Amend OAR 340-210-0205: Stationary Source Notification Requirements – Applicable Notice of Construction

Amend OAR 340-264-0040: Rules for Open Burning – Statewide Exemptions

And others if determined to be necessary.

Objective of rulemaking

Changes Proposed

The 2007 Legislature, through Senate Bill 235, amended ORS 468A.200, 468A.550. This rulemaking will align Oregon Administrative Rules (OARs) with the ORS amendments to allow regulation of agriculture to the extent necessary to comply with the federal Clean Air Act (CAA).

The rulemaking is needed to align DEQ rules to the new statutes. This includes revising exemptions in the rules and investigating whether Title V and New Source Review (NSR) rules need to be improved to address agriculture.

Need for this Rulemaking

What is the need for the proposed rules or amendments? Address each of the following that applies:

▪  Do the rule changes address a known environmental problem or a problem we speculate will occur? If the latter, how likely or serious is the problem? What are the consequences of not addressing it?

Agricultural emissions contribute to fine particulate and haze. Over time, these emissions must be addressed to meet the goals of the federal regional haze program. If those emissions are not addressed other sources may need to be disproportionately controlled. Agricultural emissions also contribute to other environmental problems (e.g. smoke impacts from field burning) that are not addressed by this rulemaking because they are not regulated by the CAA.

▪  Will the changes make it easier for the regulated community to do business? Have we consulted w/affected groups to confirm this?

We believe these changes to have minimal impact on the regulated community. Future changes may eventually make it slightly more difficult for some large agricultural facilities to do business. The CAA requires large sources of air pollution to obtain a permit. The official EPA guidance on determining the status of existing Oregon agricultural sources will become available sometime after 2010. A MOU will be developed between EQC and ODA to address the administration and enforcement of air quality laws under the direction of SB235 to designate the roles and responsibilities for the process.

The affected stakeholders were involved in designing SB235 through 4 meetings during 2006 and ongoing interaction during the 2007 Legislative session.

▪  Will the changes make it easier for DEQ to do business? What resource savings will be achieved?

These rules do not impact DEQ’s ability to conduct business and no resource savings will be achieved.

▪  Will the changes further one or more of our strategic directions?

The rulemaking supports DEQ’s strategic direction to improve Oregon’s air and water by enabling DEQ to implement federal CAA requirements that apply to agriculture.

▪  Do the rules achieve or maintain consistency with federal requirements or delegation of federal programs? If so, explain why that is necessary or important.

Yes. These rule updates will succeed in aligning Oregon rules with those of the federal CAA. This is important because several environmental groups petitioned EPA to revoke its approval of Oregon’s air quality permitting program and the State Implementation Plan (SIP) because of the agricultural exemption. If Oregon does not address the inconsistency between state and federal law, EPA may revoke its approval and could impose a federal air quality program on the state.

▪  Is there another compelling reason?

No.

▪  Can the need be met through policy, guidance, or another alternative to rulemaking? If not, briefly explain.

No. Amending Oregon’s rules is the only way to obtain the consistency with the federal rules.

Relevant History

In the fall of 2005, several environmental groups petitioned EPA to revoke its approval of Oregon’s air quality permitting program and the State Implementation Plan (SIP) because of the agricultural exemption. The 2007 Legislature passed SB235 on June 23 & 26, 2007 amending ORS 468A.020, 468A.550 and 561.400.

Deadlines

The petition has caused EPA to delay action on requested SIP revisions that are needed for efficient implementation of the Air Quality Program. EPA could initiate a “SIP Call” or Title V review if this issue is not addressed in the long run. EPA has indicated that an August 2008 EQC submittal is acceptable

Technical or Environmental Issues

None identified

Cross Media Issues

None identified.

Policy or Political Issues

This rulemaking is strictly designed to update Oregon rules to make them consistent with Federal. During the 2007 Legislative session, environmental stakeholders attempted to expand the legislation to go beyond federal requirements. While the amendments were not adopted, the Legislature created a task force to consider additional regulation of dairies. In addition, local governments and environmental groups have urged the EQC to regulate field burning. EQC does not have statutory authority to address their issue at this time.

Compliance & Enf. Issues

The CAA requires large sources of air pollution to obtain a permit. At present, there is inadequate information to determine if any existing Oregon agricultural sources have emissions large enough to trigger the need for a permit. This will not be determinable until sometime after 2010 when EPA provides the necessary guidance. A MOU will be developed between EQC and the Oregon Department of Agriculture (ODA) to address the administration and enforcement of air quality laws under the direction of SB235 to designate the roles and responsibilities for the process.

Implementation Issues

Will we be able to implement the rules? Can we effectively enforce the rules? If not, have we considered another approach to compliance? If the rules will not be accompanied by new resources, what other work will not get done? Are we prepared to drop that work? Have we communicated internally and externally with stakeholders? Is there an internal and external communication strategy to ensure that both DEQ staff and the regulated community are prepared for the effects of the rules? Is this strategy for both rulemaking and rule implementation?

These rule updates address the deficiencies in the Oregon rules in complying with the revised statutes. No new resources are necessary until the status of affected Oregon sources has been determined based on future EPA determinations through guidance developed after 2010. If agricultural sources become subject to permitting, resources will need to be addressed through the permit fees and permitting program staffing. A MOU will be developed between EQC and ODA to address the administration and enforcement of air quality laws, under the direction of SB235, to designate the roles and responsibilities for compliance purposes. This MOU could reduce resource needs by utilizing ODA field resources to assist with compliance.

5 year Review

Five year review under ORS 183.405 is not required for a rule amendment.

Stakeholders

Environment Oregon

Friends of Family Farmers

Northwest Environmental Defense Center

Oregon Dairy Association

Learning Disabilities Association of Oregon

Friends of the Columbia Gorge

Oregon Physicians for Social Responsibility

Oregon Chapter Sierra Club

Oregon Center for Environmental Health

Columbia Riverkeeper

United Farm Workers of America, AFL-CIO

Oregon Farm Bureau

Oregonians for Food and Shelter

Oregon Seed Council

Oregon Cattlemen’s Association

Oregon Toxics Alliance

Stakeholders were involved through 4 meetings in 2006 and the passing of SB235. The proposed rule updates are known to be necessary and supported by the industry. See “Policy or Political issues” for concerns of environmental groups.

Effects on Small Business, Individuals

Do the rules affect individuals, small businesses or small communities? If so, what alternatives have been or will be explored to minimize costs, including different requirements for these entities? Have we evaluated the cumulative effect of DEQ requirements and considered existing requirements that could be repealed or modified as these new requirements are adopted?

These rule updates may eventually affect small business involved in the agricultural operations sector, particularly the owner/operators of confined animal feeding operations (CAFOs). It is as yet indeterminable whether sources in Oregon will require regulation and be subject to the rules. Depending on the outcome of investigations being conducted for EPA, certain types of agricultural sources may need to obtain a facility operating permit. Costs under that program for these sources are not yet known but will be explored with the input of stakeholders and ODA in an effort to minimize their effect on family farms and small communities.

Rulemaking Process

Rulemaking Team

Advisory Process

A stakeholder workgroup was used to develop SB235. No advisory process is needed because these rule updates simply implement the revised statutes.

Public Involvement

The public will be involved through the public notice and comment process.

EQC Involvement

At this time, we don’t believe it is necessary to involve the EQC before bringing the rule updates forward for adoption because of the simple need to align the rules with the statutes. However, the EQC will be informed of related activities of the dairy task force and field burning.

Rulemaking Target Dates

Milestone

Target Dates

Advisory Process (e.g., committees; workgroups)

NA

Publication in SOS Bulletin

March 1, 2008

EQC rule adoption

August 2008