From: Garrahan Paul
Sent: Thu Jun 28 16:58:56 2012
To: SAKATA Rachel
Cc: CALKINS Larry; BIBERIC Aida; ARMITAGE Sarah; VICK Nicole R.; Logan Paul S
Subject: RE: Klamath Falls rules and plan
Importance: Normal
Rachel: I am not going to complete my rule package review today, unfortunately. The transition to my new position has simply not allowed me enough time. I will do my best to complete my review tomorrow, but I may not be done until next week (and I am out on vacation Monday and Tuesday, back on Thursday).
That said, I did want to provide some advice related to one aspect of the rule—the contingency prohibition of use of uncertified stoves. Paul Logan had original described two potential approaches on this issue—either under the Heat Smart program (ORS 468A.515—curtailment program authority) or under the EQC’s general emission standards authority (ORS 468A.025(3))). Upon further review, DOJ believes the legal risk of the latter approach (the one you have chosen in the current draft of the rules) is greater than the curtailment program approach. This is due to the legislative interpretation theory that when two provisions address the same issue, the more specific statute controls. The provisions of ORS 468A.460 through .515 specifically address the control of air pollution caused by solid fuel burning devices (SFBDs), and include specific rules about when and how SFBD use may be limited, including allowing some greater curtailment in non-attainment areas. Hence, I would recommend that new rule 340-240-0630 be rewritten as a two-stage curtailment program that complies with ORS 468A.515. Taking this approach would mean that subsection (2) of that rule would need to be deleted. I understand that is not desirable—I don’t know whether there is still a chance that that provision could be locally adopted as a building code requirement as an alternative.
In the alternative, if you wanted to proceed with the higher-risk approach of using the EQC’s general emission control authority in ORS 468A.025, then I would need to recommend some edits to the provision so that it more directly established an emission standard, and then described those devices that, by definition, would meet that standard. As written, it seems to me to skip the step of establishing an emission standard.
I’m still working to get myself fully up-to-speed on these laws and your options to achieve your goals. I will let you know if I think of any other options on this point as I complete my review. In particular, I’m contemplating whether you could adopt a curtailment program to achieve what is addressed in new rule 340-240-0630 (1) and (3) under ORS 468A.515, and separately adopt subsection (2) under the EQC’s general authority in ORS 468A.025. That could at least limit the scope of provisions that would be nullified if we lost a challenge to the EQC’s authority to adopt the certified fireplace requirement.
Paul Garrahan
503-929-7553
From: SAKATA Rachel [mailto:SAKATA.Rachel@deq.state.or.us]
Sent: Thursday, June 28, 2012 4:18 PM
To: GARRAHAN Paul
Cc: CALKINS Larry; BIBERIC Aida; ARMITAGE Sarah; VICK Nicole R.
Subject: Klamath Falls rules and plan
Hi Paul,
Couple of quick questions/reminders for you.
1) Today is the deadline by which we need comments on our Klamath Falls rulemaking package. Hopefully you’ve had a chance to review it.
2) I had a question regarding public notice of our rulemaking documents. One of the items that is going out for public comment is the Klamath Falls Attainment Plan (it was not included in the rulemaking documents that went out for review because we’re still writing it). This plan is what we submit to EPA as part of the SIP and it contains our plan for how Klamath Falls will reach attainment with the PM2.5 standard. It includes DEQ rules (which you have seen), as well as county ordinances, local agreements, etc. that will be included as appendices to the plan. My question is that we won’t necessarily have a draft of these documents (such as the county ordinance) available in time for when we send it out for public comment. We will have the final county ordinance by the time we take everything to the EQC for adoption. Is there a problem with that? Do we need to make a note of this when we send it out for public comment in any of our documents?
3) Additionally, in our attainment plan we’ve listed specific strategies that the county will be adopting in their ordinance (which won’t be finalized until after public comment). There’s still a chance that they will not adopt the strategies, so if they don’t, and we have to change our plan to reflect this, does that cause any issues? If so, can we include some language in the plan that says, “Klamath County intends to adopt xx strategy….” or something along those lines?
I’m actually out of the office tomorrow, so if you have questions about this please feel free to contact Larry Calkins in the morning. He’s available at 541-278-4612.
Thanks,
Rachel Sakata
Air Quality Planner
Oregon Department of Environmental Quality
811 SW Sixth Ave, Portland, OR 97204
ph: 503-229-5659
fax: 503-229-5675
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