Comment period

DEQ held a public comment period July 16 to 5 p.m. Aug. 25, 2011 and a public hearing 6 p.m., Aug. 18, 2011, at the Oregon Department of Environmental Quality Headquarters Office located at 811 SW 6^th Ave., Portland, Oregon. No one attended the hearing and no one testified. One commenter submitted written comments via email during this period.

Organization of comments and responses

Summaries of comments and DEQ’s responses are provided below. Comments are summarized in categories. Those who provided each comment are referenced by number. A list of commenters and their reference numbers follows the summary of comments and responses.

Summary of comments and agency responses

Comment 1

There are bills in Congress currently that would postpone or avoid entirely the industrial boiler MACT regulations finalized in February. If that is true, will the DEQ rule still exempt small and mid-sized boilers from compliance with Heat Smart, or will it only exempt those boilers that are in fact covered by the boiler MACT?

Response

If Congress modifies or repeals the federal small boiler NESHAP after EQC adopts these rules, the commission’s rules will still exempt small boilers from Heat Smart if those boilers were subject to the boiler federal emissions standards for hazardous air pollutants that were in place on the day when EQC adopted its rules. Oregon's constitution prohibits EQC from automatically incorporating future changes to the federal rule into its rules. Should changes in the federal small boiler NESHAP occur, DEQ will evaluate what, if any, revisions to the state rules are needed, and recommend that the commission modify the rules accordingly through the public rulemaking process.

Comment 2

The proposed permanent rules would exempt small-scale commercial,

industrial and institutional boilers from the Heat Smart regulations if they are subject to federal emissions standards for hazardous air pollutants and the user complies with existing construction approval requirements. So, this new rule would only apply if the boiler MACT is applied to a particular source? Would Heat Smart apply until then? Would Heat Smart re-apply if the MACT is overridden by congressional action?

Response

Heat Smart applies to the sale of small residential and commercial solid fuel heating devices (e.g. wood stoves); uncertified devices may not be sold as new or used in Oregon. Under the temporary rule, small commercial boilers subject to the boiler federal emissions standards for hazardous air pollutants do not have to be Heat Smart-certified to be sold. The proposed permanent rule would continue this exemption for small boilers that meet construction approval requirements. Heat Smart rules could not apply to an in-use commercial boiler, since the rules only apply to the point of sale for these boilers. However, if the NESHAPs are repealed in the future, in-use boilers would still be required to meet state particulate emission limits, and DEQ would evaluate what, if any, revisions to the state rule were needed.

Comment 3

The language in the proposed rule: "The owner or operator of a boiler that is subject to [the MACT] as in effect on December 16, 2011,” seems confusing because a source could be "subject to [MACT] as in effect on December 16, 2011," but that MACT may go away soon after, or before, resulting in a need to amend the rule. For example, if the MACT is overridden by congressional action before December 16, 2011, but before EQC adopts the rule, DEQ will perhaps want to make changes to the rule - as no one will be "subject to" 40 CFR part 63, subpart JJJJJJ or DDDDD. Similarly, if the MACT is overridden after December 16, 2011, and after EQC approval, those that were subject will no longer be, thus the rule will not be applicable to them. If that's the case, it seems that small and mid-sized boilers will still be subject to heat smart.

Response

The exemption applies to boilers that would be subject to the boiler federal emissions standards for hazardous air pollutants as it exists on Dec. 15, 2011*, even if the standard changes in the future. In other words, the current applicability of the standard determines which boilers qualify for the Heat Smart rule exemption. Those boilers will have to meet whatever state and federal standards apply in the future, but the applicability of the exemption from the Heat Smart rules will not change unless the EQC changes the state rules.

*NOTE: The date of Dec. 16, 2011, originally proposed under this rule amendment was revised to Dec. 15, 2011, to reflect the actual day this proposal was scheduled for EQC adoption.

List of commenters and reference numbers

Reference

Number

Name

Organization

Address

Date on comments

1, 2, 3

Aubrey Baldwin

Pacific Environmental Advocacy Center (PEAC)

Lewis and Clark Law School 10015 SW Terwilliger Blvd.

Portland, OR 97219

July 29, 2011