Oregon Department of Environmental Quality

March 20-21, 2013

Oregon Environmental Quality Commission meeting

Proposed rulemaking, Action item: #

 Updating Oregon’s air quality rules to address federal regulations

DEQ recommends that the Oregon Environmental Quality Commission:               

Adopt the proposed permanent rules in Attachment A as part of chapter 340 of the Oregon Administrative Rules. Approve incorporating these rule amendments into the Oregon Clean Air Act State Implementation Plan under OAR 340-200-0040.   

Brief history

The federal Clean Air Act requires the U.S. Environmental Protection Agency to establish National Emission Standards for Hazardous Air Pollutants for both major and area sources of hazardous air pollutants. EPA finished establishing major source standards in 2004. EPA began establishing area source standards in 2006 and concluded in 2011, but may adopt additional NESHAPs in the future for new source categories or source categories the agency may have missed. EPA may also revise NESHAPs to address errors, implementation issues and lawsuits. EPA is required to perform a risk analysis for major source NESHAPs and periodic technology reviews for New Source Performance Standards and NESHAPs. These reviews are ongoing and in some cases result in EPA making the standards more stringent.

DEQ, as the primary agency responsible for implementing the Clean Air Act in Oregon, must maintain state standards at least as stringent as the federal NESHAPs.

DEQ has proposed the area source standards for adoption by EQC in five phases, starting in December 2008. This proposed rulemaking is phase four of five.

Short summary

The proposed rules would adopt new and amended federal air quality regulations and related permit rules, which would include adopting new national performance and emission standards for electric utility steam generating units, gold mine ore processing and production, polyvinyl chloride and copolymers production, and sewage sludge incinerators and changes to the federal gasoline dispensing facility rules. The proposed rules clarify when and if Air Contaminant Discharge Permits are required for sources subject to federal New Source Performance Standards and NESHAPs.

Regulated parties

This rulemaking regulates facilities subject to new and modified NESHAPs and New Performance Standards and affects permitting requirements, which are identified in the Outline section below.

Outline

1.  Aligns Oregon’s rules with recent changes to federal emission standards

a.  Adopts the following by reference:

i.  New federal area source NESHAPs for gold mine ore processing and production

ii.  New federal major source NESHAP for electric utility steam generating units

iii.  New federal major source NESHAP for polyvinyl chloride and copolymers production

iv.  New federal New Source Performance Standards for sewage sludge incineration units

b.  Incorporates changes EPA made to the federal gasoline dispensing facility NESHAP.

c.  Updates the adoption by reference of previously adopted NESHAPs and New Source Performance Standards.

d.  Removes monitoring, recordkeeping and reporting requirements in Oregon’s utility mercury rule and replaces them with references to the monitoring, recordkeeping and reporting requirements in the federal Electric Utility Steam Generating Unit NESHAP.

2.  Makes changes to the Air Contaminant Discharge Permitting Program

a.  Removes a requirement for DEQ to include federal emission standards in Air Contaminant Discharge Permits even when the federal standards have not been adopted by EQC.

b.  Removes a requirement for affected facilities to obtain an Air Contaminant Discharge Permit if the facilities are only subject to federal New Source Performance Standards that have not been adopted by EQC.

c.  Exempts the following from permitting:

i.  Facilities subject to only procedural requirements, such as notification that the facility is affected by a New Source Performance Standards or a NESHAP

ii.  Chemical manufacturing facilities only subject to work practice standards

iii.  Paint stripping and surface coating operations using less than 20 gallons of coating and 20 gallons of methylene chloride-containing paint stripper per year

d.  Gives DEQ the ability to add new requirements to Simple or Standard Air Contaminant Discharge Permits by assigning the source to an Air Contaminant Discharge Permit Attachment.

3.  Clarifies and cleans up rules

a.  Changes the late fees for the registration and Air Contaminant Discharge Permit programs to eight days after a source misses a deadline for submitting fees instead of immediately after the deadline.

b.  Clarifies the permitting requirements for metal fabrication and finishing operations.

c.  Removes redundant general permit fee class assignments for halogenated solvent cleaners.

d.  Removes redundant gasoline dispensing facility control requirements in OAR 340 Division 232.

e.  Reassigns crematories to General Air Contaminant Discharge Permit fee class one. Crematories were inadvertently assigned to fee class two in a previous rulemaking.

f.  Repeals DEQ’s accidental release prevention rule.

The proposal does not change fee levels or create new fee categories, but it does revise the fee category applicable to crematories required to obtain Air Contaminant Discharge Permit permits and changes the date late fees are assessed in the registration program.

What problem is DEQ trying to solve?

1.  Recent changes to federal emission standards

The proposal adopts specific new federal standards for hazardous air pollutants by reference. EPA has identified specific processes and activities as emitters of one or more hazardous air pollutants, including mercury, which is a toxic of concern in Oregon that can impair neurological development and cause neurological damage. These processes and activities include electric utility steam generating units, gold mine ore processing and production and polyvinyl chloride and copolymers production. EPA developed standards to regulate the amount of hazardous air pollutants these activities can produce to better protect public health.

The proposal addresses a definitional error in existing rules for gasoline dispensing facilities by revising the definition of “gasoline dispensing facility” to include facilities that dispense gasoline into both on-road and non-road vehicles and engines. In the gasoline dispensing facility NESHAP, EPA defined “gasoline dispensing facility” as a facility that dispenses gasoline into a “motor vehicle,” but failed to define motor vehicle. The Clean Air Act, which governs NESHAPs by default, defines a motor vehicle as an “on-road vehicle.” Limiting applicability of the NESHAP to facilities that dispense gasoline into on-road vehicles is not what EPA intended. Therefore, EPA amended the NESHAP to clarify that it also applies to facilities that dispense gasoline into “non-road vehicles” and “non-road engines.” Oregon's gasoline dispensing rules that implement the NESHAP currently only apply to facilities that dispense gasoline into "on-road vehicles.”

The proposal updates standards, previously adopted by reference, which EPA revised. EPA has adopted amendments to several federal standards that were adopted by reference in Oregon's rules. DEQ cannot enforce standards that haven’t been adopted by the commission. In order to maintain federal delegation, the commission is required to adopt the most recent version of the federal standards. Affected businesses benefit from adoption by reference by having DEQ implement federal standards locally. These benefits include technical assistance and quicker approval of requests for applicability determinations and alternative testing, monitoring, recordkeeping and reporting. In addition, adopting these standards benefits the public and the environment by allowing DEQ to ensure that the required emission reductions are achieved in Oregon.

The proposal replaces the monitoring, recordkeeping and reporting requirements in Oregon’s mercury rule with those of the electric utility steam generating NESHAP, but retains the more protective mercury limits in the Oregon rule. The electric utility steam generating unit NESHAP overlaps Oregon’s utility mercury rule. The result of this overlap is different mercury emission limits and conflicting monitoring, recordkeeping and reporting requirements.

2.  Necessary changes to the Oregon Air Contaminant Discharge Permitting Program

Adoption of new federal standards by EPA triggers a requirement that DEQ incorporate the standards into the permits of affected facilities. DEQ will need time to incorporate the new standards into permits, decide which standards are better implemented by EPA and determine which standards provide the greatest environmental benefit. The proposal addresses this by requiring EQC adoption of new federal standards prior to DEQ incorporating them into Air Contaminant Discharge Permits.

Adoption of a New Source Performance Standards by EPA triggers a requirement that affected facilities obtain a permit. DEQ needs time to incorporate these requirements into permits and to improve the timeliness and efficiency of the Air Contaminant Discharge Permit program. The proposal addresses this by requiring EQC adoption of a New Source Performance Standards to trigger the requirement that affected facilities obtain a permit.

The permitting of sources subject only to procedural requirements, such as notification that the source is affected by a NESHAP or a New Source Performance Standards, places a burden on DEQ and affected sources. The proposal addresses this by exempting from permitting facilities that are only subject to procedural requirements. Affected facilities will still be required to comply with the NESHAP or New Source Performance Standards.

Currently, all facilities subject to the area source NESHAP for chemical manufacturing are required to obtain a permit. During the process of identifying affected facilities, DEQ discovered that there is one facility in Oregon that is subject to the NESHAP, but the company is only doing bench scale production and is subject to only work practice standards, not to the more substantive requirements of the NESHAP. The proposal addresses this by exempting from permitting NESHAP affected chemical manufacturing facilities only subject to work practice standards. Affected facilities will still be required to comply with the work practice standards.

Motor vehicle surface coating operations subject to the paint stripping and miscellaneous surface coating operation NESHAP and using less than 20 gallons of coating per year are exempt from permitting. However, other surface coating operations subject to the paint stripping and miscellaneous surface coating operation NESHAP are subject to permitting regardless of how much coating they use. The proposal addresses this by exempting from permitting NESHAP affected surface coating operations using less than 20 gallons of coating and 20 gallons of methylene chloride containing paint stripper per year. Affected surface coating and paint stripping operations will still be required to comply with the NESHAP.

Adopting the changes described above would improve the efficiency of the Air Contaminant Discharge Permit program and also result in fewer sources having to get a permit and pay permitting fees.

3.  Need to clarify and clean up rules

There is an ongoing need to clarify and make corrections to existing rules when confusing language or errors are discovered. The proposal addresses this by aligning the late fees for the registration and Air Contaminant Discharge Permit programs to eight days after a source misses a deadline for submitting fees instead of immediately after the deadline.

The proposal also clarifies the permitting requirements for metal fabrication and finishing operations by removing redundant general permit fee class assignments for halogenated solvent cleaners. In addition, the proposal removes redundant gasoline dispensing facility control requirements in OAR 340 Division 232 and reassigns crematories to General Air Contaminant Discharge Permit fee class one. Crematories were inadvertently assigned to fee class two in a previous rulemaking.

DEQ adopted an accidental release prevention rule in Division 244 before EPA adopted the federal accidental release prevention rules. The federal rules were not subsequently adopted into DEQ rules because DEQ determined that, except for DEQ’s role in ensuring that affected Title V sources submit their risk management plan to EPA, this program is better implemented by EPA and other state agencies. The proposal addresses this by repealing DEQ’s accidental release prevention rule. Affected facilities will still be required to comply with the federal accidental release prevention rules.

How would the proposed rules solve the problem?

The proposed rule changes would update DEQ’s rules to reflect new and amended federal standards and also allow DEQ to better manage workload, spread out permitting over time, focus on federal standards with the greatest environmental benefit and decline to implement federal standards that are not substantive for Oregon or that are better implemented by EPA on the federal level.

These rule changes will further DEQ’s strategic direction to protect Oregonian’s from toxic pollutants by creating efficiencies and updating rules so they are consistent with federal rules. This allows DEQ to focus resources on other actions to reduce toxic air pollution and risk to public health.

How will DEQ know the problem has been solved?

Upon adoption by the EQC, DEQ would submit the rules to EPA to update Oregon’s New Source Performance Standards, NESHAP delegation and State Implementation Plan. DEQ will know the goals of this rulemaking have been addressed when EPA reviews and approves the delegation request and State Implementation Plan revision.

Request for other options

During the public comment period, DEQ requested public comment on whether to consider other options for achieving the substantive goals of the proposed rules while reducing any negative economic impact of the rules on business. DEQ received public comments in regard to other options. Please see the Summary of Comments and DEQ Responses section for these comments.

 Advisory committee

DEQ did not convene an advisory committee.

 EQC prior involvement

EQC was aware of this rulemaking through regular rulemaking updates and did not request a briefing since the purpose of this routine rulemaking was to align state and federal regulations, which EPA requires for program delegation.

Public notice

The Oregon Secretary of State published notice of the proposed rulemaking in the Bulletin on Sept. 1, 2012. DEQ also:

•  Posted notice of the proposed rules on DEQ’s webpage http://www.deq.state.or.us/regulations/proposedrules.htm on Aug. 22, 2012.

•  E-mailed notice to:

•  5,368 interested parties through GovDelivery on Aug. 22, 2012.

•  Three key legislators, as required under ORS 183.335, on Aug. 23, 2012.

◦  Jules Bailey, Co-Chair, House Energy, Environment and Water Committee

◦  Jackie Dingfelder, Chair, Senate Environment and Natural Resources Committee

◦  Vic Gilliam, Co-Chair, House Energy, Environment and Water Committee

•  Emailed or mailed the notice to 130 other interested parties on Aug. 22, 2012.

•  Sent notice to EPA on Aug. 3, 2012. 

Public hearings

During the comment period, DEQ held one public hearing in Portland that was accessible by phone from DEQ’s Bend and Medford offices. Before taking public comment, DEQ described the rule proposal. The following table lists public hearing locations and participation:

Public comment

DEQ received comments from five individuals or organizations, as seen in the Summary of Comments and DEQ Responses and Commenters sections below. The comment period closed at 5 p.m. Sept. 28, 2012.

DEQ organized the comments into three summary categories. DEQ’s response follows each comment summary. Original comments are on file with DEQ.

1.  Align Oregon’s rules with recent changes to federal emission standards

a.  Adopt by reference new federal area source NESHAPs for gold mine ore processing and production; new federal major source NESHAP for electric utility steam generating units; new federal major source NESHAP for polyvinyl chloride and copolymers production; and new federal New Source Performance Standards for sewage sludge incineration units;

i.  Comment  To further protect Oregonian's from toxic pollutants, the rules should allow for denial of an eligible permit based on public comment. I understand the agency does not have statutory authority, so I recommend that the EQC request that the agency subject a legislative concept to request the necessary authority. (Commenter 4)

Response It is correct that DEQ does not have authority to deny an eligible permit based solely on public comment. However, DEQ can deny a permit if a source is unable to meet applicable rules and regulations.

Having objective criteria outlined in rule ensures fair and equal treatment of applications and allows businesses to know if they are eligible for a permit based on the rules and regulations in place at time of application.

Allowing public comment independently as grounds for permit denial would make the process more subjective and be difficult for DEQ to implement.

These comments will be given to EQC for its consideration.

b.  Update the adoption by reference of previously adopted NESHAPs and New Source Performance Standards:

i.  Comment  DEQ should incorporate federal rules based on the rules publication in the Federal Register, not the Code of Federal Regulations. (Commenters 3 and 5)

Response The problem with incorporating federal rules by referencing the Federal Register is that DEQ would have to reference multiple Federal Register publications for each rule. The CFR lists all Federal Register publications included in the CFR. By referencing a specific CFR, the EQC adopts all Federal Register publications that occurred prior to publication of the CFR. DEQ will attach to this staff report a list of FR publications which occurred between July 1, 2010 and July 1, 2012.

ii.  Comment  The CFR constantly changes and it is difficult to look at the current CFR sections to determine what requirements have been incorporated into DEQ rules. (Commenters 3 and 5)

Response A given federal rule may be changed in multiple Federal Register publications. However, when a federal rule is changed, the Federal Register publication typically only lists the sentence(s) and/or paragraph(s) that is being changed, not the entire rule. The CFR merges all those Federal Register publications and shows the version of the federal rule that exists at the time the CFR is published.

iii.  Comment  Referencing the Federal Register points to a specific publication that won’t change and eliminates confusion to what versions of the rules are incorporated by reference. (Commenters 3 and 5)

Response DEQ rules list by date the version of the CFR that is adopted by the EQC. Any changes to a rule that are published in the Federal Register after this date are not incorporated into that CFR and therefore not incorporated into DEQ rules. DEQ will attach to this staff report a list of FR publications which occurred between July 1, 2010 and July 1, 2012.

iv.  Comment  The Federal Register contains the preamble which explains the rule in detail, provides additional information, and eliminates any additional confusion. (Commenters 3 and 5)

Response DEQ agrees that the preamble contains important information on the federal standards. DEQ will attach a list of Federal Register publications between July 1, 2010 and July 1, 2012. The CFR also contains a list of Federal Register publications for each federal rule. CFRs dating back to 1996 can be found at: http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR.

c.  Remove monitoring, recordkeeping and reporting requirements in Oregon’s utility mercury rule and replace them with references to the monitoring, recordkeeping and reporting requirements in the electric utility steam generating unit NESHAP:

i.  Comment  We applaud DEQ for keeping Oregon’s more stringent mercury requirements. (Commenter 3)

Response Thank you for your comment.

ii.  Comment  We are concerned about how DEQ has merged Oregon’s utility mercury rule and the new federal electric utility standards. For instance, sorbent trap monitoring system and coal-derived fuel are removed from the definition section and there are no definitions for these terms in the federal rules. We urge DEQ to conduct a more thorough review to ensure all terms are defined either in the OAR or the CFR and those that are not used are removed from the OAR. (Commenters 3 and 5)

Response Based on your comment, DEQ performed another review of the definition section for Oregon’s utility mercury rule. As a result of that review, and these comments, DEQ added back several definitions.

iii.  Comment  We suggest that DEQ create a cross reference chart which shows the definitions that DEQ is proposing to remove from Oregon’s utility mercury rule and where, specifically, they appear in the federal rules or why it is no longer necessary to include them within Oregon’s utility mercury rule. (Commenter 5)

Response Please see the following table:

2.  Air Contaminant Discharge Permitting Program

a.  Exempt from permitting: facilities subject to only procedural requirements, such as notification that the facility is affected by an New Source Performance Standards or NESHAP; chemical manufacturing facilities only subject to work practice standards; and paint stripping and surface coating operations using less than 20 gallons of coating and 20 gallons of methylene chloride containing paint stripper per year;

i.  Comment  The new rules appear to exempt from permitting my small furniture restoration businesses. This is very good news as the permit fee is a heavy burden to pay. (Commenter 1)

Response Thank you for your comment.

ii.  Comment  I feel my concerns were sincerely listened to. It is heartening in a time where there seems to be so much distrust of government, that there are sincere efforts by public employees to develop reasonable, fair rules and regulations. (Commenter 1)

Response Thank you for your comment.

iii.  Comment  Relatively small users of methylene chloride, who use, say 25 gallons per year, would still qualify as a “small” operation (though I know most business owners would need to incorporate this cost in their fees). (Commenter 1)

Response While 25 gallons (approximately 276 pounds) of methylene chloride per year constitutes a small paint stripping operation, it potentially poses a health risk to the public. Methylene chloride is on EPA’s list of the 30 hazardous air pollutants that present the greatest threat to public health. According to the Occupational Safety & Health Administration, those exposed to methylene chloride are at increased risk of developing cancer and adverse effects on the heart, central nervous system, and liver. The South Coast Air Quality Management District has set a screening level of 255 pounds of methylene chloride per year at 328 feet from the emission source. This means 255 pounds of methylene chloride per year potentially poses a risk to the public as far away as 328 feet from the emission source. For these reasons, the proposed rules retain the 20 gallon threshold for methylene chloride.  

iv.  Comment  The permit fees apply irrespective of whether an applicant uses hundreds of gallons a year or 10 gallons a year. This does not seem fair and places smaller operators in a competitive disadvantage. DEQ HAZMAT recycling events apply fees based on the quantity of waste recycled, which seems fair. (Commenter 1)

Response DEQ’s Air Contaminant Discharge Permit program is funded through permit fees. Those fees cover the cost of ensuring that sources comply with applicable air quality rules and regulations. The cost of ensuring compliance is proportional to the complexity of the emissions standards, not to usage or production. For instance, paint stripping operators are subject to the same work practice standards regardless of size. In other words, the cost to do an inspection would be similar for a source using 100 gallons of methylene chloride per year and a source using 10,000 gallons of methylene chloride per year. Therefore, DEQ is charging the same amount for these facilities regardless of the size of the source.

v.  Comment  Will permit holders who use under 20 gallons of methylene chloride stripper last year receive some refund of their permit fees? (Commenter 1)

Response Yes, permit holders will receive a prorated portion of their most recent annual fees based on the date of permit cancellation.  

vi.  Comment  In regard to the proposed exemption for sources subject only to procedural requirements, with this change, what data will be lost and what are the potential impacts of the lost data? (Commenter 4)

Response The only requirement that these sources have under the federal rules is to submit an initial notification that they are subject to the rules. Sources are not subject to any requirements that would reduce their emissions. These sources would continue to be subject to the requirement to submit an initial notification and DEQ will work to ensure that these sources submit the notification, so there should be no lost data.

b.  Remove a requirement for affected facilities to obtain an Air Contaminant Discharge Permit if the facilities are only subject to federal New Source Performance Standards that have not been adopted by the EQC;

i.  Comment  We disagree with the proposed requirement that an NSPS be adopted by the EQC before affected sources are required to obtain a permit. (Commenters 3 and 5)

Response Allowing an EPA action, such as the adoption of NSPS standards, to trigger a requirement that affected sources obtain a non-federal permit, delegates DEQ rulemaking authority to EPA, which is not allowed by the Oregon Constitution. This is known as prospective rulemaking. This issue hasn’t been raised before because EPA only recently began adopting rules that bring in significant numbers of sources that weren’t previously permitted. EPA is not subject to the Oregon procedural safeguards and requirements that DEQ is constitutionally and statutorily required to follow before adopting a rule; hence the people of Oregon are deprived of their opportunity to review, comment on, and influence DEQ’s implementation strategy.

ii.  Comment  Exploring alternative implementation methods could take a significant amount of time and if a source is no longer required to obtain an Air Contaminant Discharge Permit they would no longer have an incentive to help develop alternative implementation methods. I recommend including a time line for review of the standards by DEQ and the EQC. (Commenters 3, 4 and 5)

Response The source is still subject to the federal standards and its timeline even though the EQC hadn’t adopted the standards and DEQ hadn’t yet permitted the source. The alternative implementation method is a way for DEQ to ensure compliance, either through adoption of the rule and permitting or through some other means such as outreach or registration. Exploring alternative implementation methods allows DEQ to focus its resources on the more significant emission sources and on implementing the federal standards that achieve the greatest environmental benefit.  

iii.  Comment  The proposal anticipates a positive fiscal and economic impact as a result of this change. What is the anticipated environmental impact? (Commenter 4)

Response DEQ typically implements federal standards in Oregon. DEQ implementation of federal standards increases the likelihood that the emission reductions and consequent health benefits are achieved in Oregon. The proposed changes do not change EQC’s practice of adopting federal rules for state implementation. When the adoption of new federal rules is delayed DEQ often works with affected facilities in advance of EQC’s adoption to assist with compliance. Therefore, DEQ anticipates that the proposed change will have a minimal negative environmental impact.

c.  Remove a requirement for DEQ to include federal standards in Air Contaminant Discharge Permits even when the federal standards have not been adopted by the EQC;

i.  Comment  We disagree with the proposed change that would require EQC adoption of NESHAPs and New Source Performance Standards before DEQ is required to put those standards into existing Air Contaminant Discharge Permit permits. (Commenters 3 and 5)

Response Placing new federal standards into Air Contaminant Discharge Permit permits prior to EQC adoption and requesting delegation of those standards from EPA creates problems, because the source would potentially have to demonstrate compliance to and be subject to enforcement by two agencies, EPA and DEQ. Placing new federal standards into Air Contaminant Discharge Permit permits prior to EQC adoption and requesting delegation of those standards is also problematic because DEQ would be required to implement those standards prior to determining whether it has the resources or expertise to do so. Prior to adopting and accepting delegation of new federal standards, DEQ lists other federal standards that may apply to a source in the review report to the permit.

ii.  Comment  DEQ did not explain why a federal standard that is better suited for implementation on the federal level doesn’t eventually need to be placed in a permit. (Commenters 3 and 5)

Response DEQ only takes delegation of programs when it has the resources and ability to implement them. If DEQ does not take delegation, EPA is responsible for implementation. However, if federal requirements for a non-delegated program are put into a permit, DEQ would be obligated to inspect and enforce the requirements because state law (ORS 468.090) requires DEQ to investigate and seek enforcement of all permit conditions. This would be inconsistent with declining to take delegation and leaving these responsibilities to EPA. An example of a federal requirement where DEQ lacks the resources and/or expertise to implement is the federal accidental release program. DEQ held an advisory committee to advise DEQ on how to obtain the resources to implement the federal accidental release program. The committee determined that the accidental release program is better implemented on the federal level. Without these proposed changes, DEQ would be required to place the accidental release program into Air Contaminant Discharge Permit permits, without the appropriate resources to implement the program.

iii.  Comment  We do not understand why, when DEQ is otherwise issuing a permit for a source, DEQ would prefer not to put all applicable requirements into the permit. This will cause serious confusion because Oregon residents will be looking at a permit that does not include all the emission limits and standards that the source is subject to. (Commenters 3 and 5)

Response DEQ understands the value of having all regulatory requirements whether state or federal in one place, the Air Contaminant Discharge Permit. However, as mentioned previously, putting un-adopted and non-delegated federal requirements into state permits creates problems. Instead DEQ lists other federal requirements that may apply to a source in the review report to the permit.

iv.  Comment  DEQ hasn’t provided any information showing that these incomplete permits will state that they are incomplete and that other federal requirements may apply. (Commenters 3 and 5)

Response  DEQ typically lists other federal requirements that may apply to a source in the review report to the permit.

d.  Give DEQ the ability to add new requirements to Simple or Standard Air Contaminant Discharge Permits by assigning the source to an Air Contaminant Discharge Permit Attachment.

i.  Comment  What are some examples of "new requirements"? (Commenter 4)

Response New Source Performance Standards and NESHAP standards are “new requirements.” For example, an industrial facility on Standard Air Contaminant Discharge Permit may have a gas pump to fuel onsite equipment. The facility would be subject to the gasoline dispensing NESHAP. This rule would allow DEQ to assign to the source a gasoline dispensing facility permit attachment to cover the NESHAP standards until the permit is renewed and the new requirements are incorporated into the existing standard permit.

e.  General comments

i.  Comment Do these changes reduce requirements? (Commenter 4)

Response The proposed changes delay when businesses are required to get a permit and when new federal requirements must be put into existing permits. The proposed changes do not affect the federal requirements. Affected businesses must comply with the federal requirements regardless of whether the requirements are in a permit.

ii.  Comment Do these changes "focus resources on reducing toxic air pollution and risk to public health" or focus on the largest polluters? Are there alternatives to allow broader focus? (Commenter 4)

Response DEQ continues to make adjustments to the Air Contaminant Discharge Permit program and its implementation of the federal air toxic standards so that the focus is on the more significant sources of toxic air pollution and on the federal standards that achieve more significant reductions of toxic air pollution in Oregon.

i.  Comment  The issuance of an Air Contaminant Discharge Permit is important because it makes it easier for local residents to know what limits EPA or DEQ have put on the operations local emission sources. DEQ did not consider how the proposed changes would affect residents and their understanding of local emission sources. (Commenter 3)

Response DEQ understands the public’s need to understand their local emission sources..  All state and federally delegated standards are contained within the state permit. DEQ lists non-delegated federal standards that may apply to a source in the review report which accompanies the permit and is available to the public. This is done to reduce confusion about which agency is responsible for implementation of those standards.

ii.  Comment  The issuance of an Air Contaminant Discharge Permit is important because it lets local residences know what industries are located in their neighborhood as well as what limits EPA or DEQ has put on operations of local emissions sources. (Commenters 3 and 5)

Response DEQ agrees that issuance of a permit lets local residences know what industries are located in their neighborhoods as well as what limits EPA or DEQ has put on operations of local emissions sources. This portion of the rule change does not affect what sources are put on a permit, but may affect the timing of permitting.  

iii.  Comment  DEQ did not explain why handling the implementation of federal requirements not adopted by the EQC could not be handled through the issuance of a General Air Contaminant Discharge Permit or General Air Contaminant Discharge Permit Attachment. (Commenters 3 and 5)

Response Issuance of a General Air Contaminant Discharge Permit or General Air Contaminant Discharge Permit Attachment to sources subject to new federal standards would limit the administrative burden on DEQ’s permitting program and make it clear what sources are subject to those standards. However, as discussed above, DEQ implementation of non-EQC adopted federal standards delegates DEQ’s rulemaking authority to EPA, which is not allowed by the Oregon Constitution.

3.  Clarify and clean up rules

a.  Align the late fees for the registration and Air Contaminant Discharge Permit programs.

i.  Comment   Has the agency considered the alternative of altering the deadline rather than changing the timing of late fees? (Commenter 4)

Response The deadline for annual Air Contaminant Discharge Permit fees is set by rule as Dec. 1 but may be adjusted to Dec. 2 or 3 if Dec. 1 falls on a weekend day. Late fees are triggered if the deadline is missed by eight days or more. Late fees for the registration program were meant to mirror the Air Contaminant Discharge Permit program for consistency and to avoid the expense of having to reprogram the invoicing system. However, DEQ inadvertently omitted the eight day trigger for late fees. Alternatives were not considered because this change is a simple fix to align the Air Contaminant Discharge Permit and registration rules.

ii.  Comment   The proposal called out a positive fiscal and economic impact as a result of this change. Would the agency not incur a negative fiscal impact due to reduction of late fees collected and what impact will this have on agency revenues? (Commenter 4)

Response Most facilities pay their invoices on time. However, if all registered businesses paid late (within eight days after the due date), the combined late fees would total $186.Therefore, the proposed change is not expected to have a significant impact on DEQ revenue. In addition, the cost to reprogram the database to accommodate different late fee dates is estimated to be more than the additional late fees collected, making the economic impact of the rule change positive.

b.  General comments.

i.  Comment   Publications referenced in DEQ rules should be made available from DEQ, not EPA. These are DEQ rules and thus DEQ is responsible for providing referenced documents. (Commenter 2)

Response DEQ agrees and will change “the agency” to “DEQ,” not “EPA.”

ii.  Comment   “EPA” should be removed and “the agency” reinserted in OAR 340-200-0020(107)(c). This change would inappropriately define any principle executive officers as having responsibility over EPA. (Commenter 2)

Response DEQ will remove “EPA” from OAR 340-200-0020(107)(c) and reinsert “the agency.”  

Comments received by close of public comment period

The table below lists the people and organizations who submitted comments on the proposed rules by the deadline for submitting public comment. Original comments are on file with DEQ.

1  Commenter:   Steve Miller      Affiliation:  Miller’s Furniture

This commenter submitted comments under category 2 in the Summary of comments and DEQ responses section above.

2  Commenter:   Justin Spenillo    Affiliation:  EPA Region 10

This commenter submitted comments under category 3 in the Summary of comments and DEQ responses section above.

3  Commenter:   Aubrey Baldwin    Affiliation:  Earthrise

This commenter submitted comments under categories 1 and 2 in the Summary of comments and DEQ responses section above.

4  Commenter:  Shirlene Gonzalez    Affiliation:  None

This commenter submitted comments under categories 1, 2, and 3 in the Summary of comments and DEQ responses section above.

5  Commenter:  John Krallman      Affiliation:  Neighbors for Clean Air

This commenter submitted comments under categories 1 and 2 in the Summary of comments and DEQ responses section above.

The details of rule implementation outlined below are still under development and subject to change.

Notification

If approved, the proposed rules would become effective on Mar. 22, 2013. DEQ will notify affected parties by:

•  Mailing initial notification and other materials to facilities that potentially dispense gasoline into non-road vehicles and non-road engines

•  Contacting paint stripping and surface coating operations that potentially qualify for the new permit exemption

•  Notifying facilities with a Simple or Standard Air Contaminant Discharge Permit that potentially need to be assigned to an Air Contaminant Discharge Permit Attachment

•  Tracking receipt of initial notification and exemption declaration forms from facilities that potentially dispense gasoline into non-road vehicles and non-road engines

•  Sending reminder postcards to facilities that have not returned the required notification or exemption form to DEQ

•  Creating a list of facilities subject to the NESHAP and determining which facilities are required to obtain a new permit or have their permit revised

•  Sending out permit applications to facilities that potentially dispense gasoline into non-road vehicles and non-road engines and that are potentially required to obtain a permit

•  Contacting existing permittees of the need to incorporate new requirements into their permits.

Compliance and enforcement

Incorporating new and amended NESHAPs into Title V and Air Contaminant Discharge Permits and ensuring compliance: Current DEQ rules require that DEQ place new and amended federal standards into Title V and Air Contaminant Discharge Permit permits. Once the new and amended federal standards are incorporated into a permit, DEQ is required to inspect pollution control systems or prevention methods and to review monitoring data and compliance reports as part of their routine compliance inspections. Inspections may identify violations of emission limits and standards.

Title V Sources: OAR 340-218-0200 requires each issued permit to be reopened and revised if additional applicable requirements under the federal clean air act become applicable to a major Title V source with a remaining permit term of 3 or more years. Such a reopening must be completed no later than 18 months after promulgation of the applicable requirement. No such reopening is required if the effective date of the requirement is later than the date on which the permit is due to expire, unless the original permit or any of its terms and conditions has been extended pursuant to OAR 340-218-0130. Amendments to federal standards will be incorporated upon permit renewal.

Non-Title V Sources: Most non-major NESHAP sources are exempted from Title V. However, OAR 340-216-0020(1) requires non-Title V NESHAP sources to obtain an Air Contaminant Discharge Permit in order to operate. Some facilities affected by the new NESHAPs are already on an Air Contaminant Discharge Permit. The new NESHAP requirements will need to be incorporated into these facility’s permits. Facilities not already on an Air Contaminant Discharge Permit will need to apply for an Air Contaminant Discharge Permit within four months and obtain an Air Contaminant Discharge Permit within six months of EQC’s adoption of the new NESHAPs. DEQ has the ability to defer the requirement to submit an application for, or to obtain an Air Contaminant Discharge Permit, or both, by up to an additional 12 months. The current rules are expected to be adopted in March 2013. Therefore, affected sources will be required to submit a permit application in July 2013 and obtain a permit in September 2013. DEQ can defer these dates to July 2014 and September 2014, respectively.

The proposed rule amendments would give DEQ the ability to add new requirements to Simple or Standard Air Contaminant Discharge Permits by assigning the affected facilities to an Air Contaminant Discharge Permit Attachment. If EPA or DEQ action caused a facility to be subject to the new requirements, the facility would not be required to submit a permit application or pay fees for this permit action. The DEQ office in the region in which the affected facility is located would notify the affected facility of the proposed permitting action, and if the permittee does not object, assign the facility to the Air Contaminant Discharge Permit Attachment. The assignment would end when the affected facility’s permit is renewed and the new requirements are rolled into the facility’s Simple or Standard Air Contaminant Discharge Permit.

Implementing the Gasoline Dispensing Facility Amendments: To avoid the task of reassigning over a thousand gasoline dispensing facilities to an amended General Air Contaminant Discharge Permit the clarifying amendments will be handled through outreach and education. Any amendments will be made when the General Air Contaminant Discharge Permit expires and needs to be reissued.

Implementing the Paint Stripping and Surface Coating Permit Exemption: DEQ’s regional offices will begin cancelling permit assignments starting in March 2013 and DEQ’s headquarters office will issue prorated refunds of 2013 annual fees starting in April 2013.

Implementing Gasoline Dispensing Facility Requirements for Facilities that Dispense Gasoline into Non-Road Vehicles and Non-Road Engines: DEQ’s headquarters office will send initial notification forms and permit applications to these facilities in March 2013 and the regional offices will start assigning affected facilities to a General Air Contaminant Discharge Permit starting in June 2013.

Measuring, sampling, monitoring and reporting

•  Affected parties - Any required compliance testing and reporting requirements are contained in the federal NESHAP and New Source Performance Standards and will be incorporated into the permits of affected parties.

•  DEQ staff - DEQ staff will process and review compliance reports submitted by affected parties to determine compliance with the federal NESHAP and New Source Performance Standards

Systems

•  Website - DEQ’s headquarters office will update its website with any new or amended permits, permit application forms and compliance reporting forms.

•  Database - DEQ will use its existing TRAACS database to implement the Title V and Air Contaminant Discharge Permit programs and track compliance with the new NESHAP and New Source Performance Standards. Minor changes will need to be made to TRAACS to accommodate the ability to add new requirements to Simple or Standard Air Contaminant Discharge Permits by assigning the affected facility to an Air Contaminant Discharge Permit Attachment.

•  Invoicing - DEQ will use its existing TRAACS database for invoicing.

Training

Whenever possible, staff training will rely on established EPA and industry training, workshops and implementation materials. Headquarters staff will track training opportunities, workshops and implementation materials to get affected parties and the appropriate DEQ staff the necessary resources to comply with and implement the new NESHAP and New Source Performance Standards. DEQ’s headquarters staff will also visit regional offices when requested to discuss the new and amended standards.

Federal relationship

"It is the policy of this state that agencies shall seek to retain and promote the unique identity of Oregon by considering local conditions when an agency adopts policies and rules. However, since there are many federal laws and regulations that apply to activities that are also regulated by the state, it is also the policy of this state that agencies attempt to adopt rules that correspond with equivalent federal laws and rules..."

ORS 183.332

OAR 340-011-0029

ORS 468A.327

Discuss HOW the proposal is different from or in addition to federal requirements.

1.  Align Oregon’s rules with recent changes to federal emission standards

For the most part, these changes would adopt federal air quality requirements by reference. However, this rulemaking proposes amendments to existing rules that are different from or in addition to the federal requirements for gasoline dispensing facilities and electric utilities.

Oregon’s existing gasoline dispensing facility rules implement the federal air quality requirements for gasoline dispensing facilities. Oregon’s existing gasoline dispensing facility rules are also different from and in addition to the federal requirements because they have a lower applicability threshold for stage I emissions controls and ban the practice of “topping off.” While this proposal does not make any revisions to requirements in Oregon’s existing gasoline dispensing facility rules, it does potentially require more facilities to comply with the existing requirements that are different from or in addition to the federal rules.

Oregon’s existing utility mercury rule is different from the new utility steam generating unit NESHAP because it has more stringent mercury limits and different monitoring, recordkeeping and reporting requirements. The proposed changes eliminate a difference from the federal rules by replacing the monitoring, recordkeeping and reporting requirements in Oregon’s utility mercury rule with references to the monitoring, recordkeeping and reporting requirements in the electric utility steam generating unit NESHAP. The proposed rules also retain the more stringent mercury emission limits in Oregon’s utility mercury rule.

2.  Changes to Air Contaminant Discharge Permitting Program

For EPA to approve delegation of the federal requirements, Oregon must have procedures and resources to ensure compliance. For major sources, federal law requires affected sources to have Title V permits. However, for area sources, federal law provides flexibility on how states will ensure compliance. For the most part, Oregon uses the Air Contaminant Discharge Permit program for this purpose, including Standard, Simple and General Air Contaminant Discharge Permits. Because the federal program only requires an operating permit for major sources under Title V, all provisions of this rulemaking that modify Oregon's Air Contaminant Discharge Permit program are in addition to the federal requirements. The proposed changes modify who must obtain an Air Contaminant Discharge Permit, the requirements included in an Air Contaminant Discharge Permit and the fee schedule for Air Contaminant Discharge Permits.

3.  Clarify and clean up rules

Because the federal program only requires an operating permit for major sources under Title V, all provisions of this rulemaking that modify Oregon's registration program are in addition to the federal requirements. The proposed changes align the late fees for the registration and Air Contaminant Discharge Permit programs.

The proposed removal of Oregon’s accidental release prevention rule is the same as federal requirements because the federal accidental release prevention rules will apply in Oregon in the absence of Oregon’s accidental release prevention rule.

The proposed changes that clarify the permitting requirements for metal fabrication and finishing operations. which remove redundant general permit fee class assignments for halogenated solvent cleaners, and reassign crematories to General Air Contaminant Discharge Permit fee class one are in addition to the federal requirements because they involve changes to the Air Contaminant Discharge Permit program rules.

Discuss WHY the proposal is different from or in addition to federal requirements.

1.  Align Oregon’s rules with recent changes to federal emission standards

The proposed changes to Oregon’s gasoline dispensing rules incorporate changes EPA made to the federal gasoline dispensing facility NESHAP by extending applicability to facilities that dispense gasoline into “non-road vehicles” and “non-road engines.” Newly affected gasoline dispensing facilities would be subject to Oregon’s gasoline dispensing facility rules, which are more stringent than the federal rules. Oregon’s gasoline dispensing facility rules require additional emission reductions to protect public and worker health, help prevent future violations of ambient air quality standards and take advantage of existing emission control equipment.

The proposed rules retain the more stringent mercury emission limits in Oregon’s utility mercury rule. Several water bodies in Oregon currently have fish consumption advisories issued by Oregon Department of Health Services warning anglers to limit their intake of native fish species because of increased mercury concentrations in fish tissue. Retaining Oregon’s more stringent mercury emission limits minimize the impact of coal-fired power plants on mercury concentrations in fish.

2.  Changes to Air Contaminant Discharge Permitting Program

Because Oregon uses the Air Contaminant Discharge Permit program to implement federal standards for sources that are not required to obtain a Title V permit, Oregon's rules must specify which sources must obtain an Air Contaminant Discharge Permit, what requirements are included in the Air Contaminant Discharge Permit and the fee schedule for Air Contaminant Discharge Permits. The proposed changes to the Air Contaminant Discharge Permit program reduce the economic impact of permitting on small businesses, the workload of incorporating new requirements into multiple permits and the total number of permits that DEQ must administer.

3.  Clarify and clean up rules

The purpose of the proposed changes is to clarify, remove redundancy and clean up the registration and Air Contaminant Discharge Permit rules.

What alternatives did DEQ consider?

1.  Align Oregon’s rules with recent changes to federal emission standards

DEQ considered not taking delegation for some federal standards. However, with the exception of the federal standards regulating stationary internal combustion engines, DEQ rejected this alternative because it would reduce compliance and assistance to Oregon sources. DEQ also considered making state-specific changes to some federal standards, but rejected this alternative because the federal rules address Oregon’s immediate concerns and consistency with the federal rules reduces cost and complexity for affected sources.

DEQ considered not expanding Oregon's gasoline dispensing facility rules to also apply to facilities that dispense gasoline into “non-road vehicles” and “non-road engines.” DEQ rejected this alternative because it does not align Oregon rules with EPA rules and would result in DEQ not receiving delegation of the federal rules.

DEQ considered repealing Oregon’s utility mercury rule. DEQ rejected this alternative because the mercury limits in the utility mercury rule are more protective of public health than the mercury limits in the electric utility steam generating unit NESHAP. DEQ also considered retaining the monitoring, recordkeeping and reporting requirements in the utility mercury rule. DEQ rejected this alternative because the monitoring, recordkeeping and reporting requirements in the utility mercury rule were taken from the vacated federal clean air mercury rule and either overlap or conflict with the monitoring, recordkeeping and reporting requirements in the electric utility steam generating unit NESHAP.

2.  Changes to Air Contaminant Discharge Permitting Program

DEQ considered retaining the definition of applicable requirement to include federal standards not adopted by EQC. DEQ rejected this alternative because retaining the definition makes it difficult for DEQ to manage workload, does not allow DEQ to focus its resources on standards with the greatest environmental benefit and requires DEQ implementation of standards that are not substantive or that are better implemented by EPA.

DEQ considered retaining the requirement that facilities affected by a NSPS obtain a standard Air Contaminant Discharge Permit, regardless of whether EQC has adopted the NSPS. DEQ rejected this alternative because the NSPS would be triggered before DEQ is able to consider and implement less expensive and burdensome implementation options.

DEQ considered retaining the permitting requirement for facilities subject only to procedural requirements, chemical manufacturing facilities subject only to work practice standards, and paint stripping and surface coating operations using less than 20 gallons of coating and 20 gallons of methylene chloride containing paint stripper per year. DEQ rejected this alternative because the permitting requirement places an excessive burden on these facilities for little to no environmental benefit.

3.  Clarify and clean up rules

DEQ considered retaining Oregon’s accidental release prevention rule or adopting the federal accidental release prevention rule by reference. DEQ rejected retaining Oregon’s accidental release prevention rule because it predated and is a placeholder for the federal accidental release prevention rule. DEQ rejected adopting the federal accidental release prevention rule by reference because the rule is best implemented by EPA and other state agencies. In August 2011, DEQ entered into a Memorandum of Agreement with EPA and other parties that addresses DEQ’s role in the program, which is limited to ensuring that affected Title V sources submit their risk management plan to EPA.

Lead division            Program or activity

Air Quality  Program Operations section

 Chapter 340 action}      

 Recommendation}  Division  Rule  Title  SIP/Land use*

amend  200  0020  General Air Quality Definitions  SIP

amend  200  0040  State of Oregon Clean Air Act Implementation Plan  SIP

amend  210  0100  Registration in General  SIP

amend  216  0020  Applicability  Land use and SIP

amend  216  0020  Table 1  Land use and SIP

amend  216  0060  General Air Contaminant Discharge Permits  Land use and SIP

amend  216  0062  General Air Contaminant Discharge Permit Attachments  Land use and SIP

amend  216  0064  Simple Air Contaminant Discharge Permits  Land use and SIP

amend  216  0066  Standard Air Contaminants Discharge Permits  Land use and SIP

amend  228  0602  Definitions   

amend  228  0606  Hg Emission Standards   

amend  228  0609  General Requirements   

amend  228  0635  Recordkeeping   

amend  228  0637  Reporting   

amend  232  0085  Gasoline Delivery Vessel(s)  SIP

amend  238  0040  Definitions   

amend  238  0060  Federal Regulations Adopted by Reference   

amend  244  0030  Definitions   

amend  244  0210  Emissions Limitation for Existing Sources   

amend  244  0220  Federal Regulations Adopted by Reference   

amend  244  0234  Affected Sources  SIP

amend  244  0238  Compliance Dates  SIP

amend  244  0240  Work Practice and Submerged Fill Requirements  SIP

amend  244  0242  Vapor Balance Requirements  SIP

amend  244  0242  Table 4  SIP

amend  244  0242  Table 5  SIP

amend  244  0244  Testing and Monitoring Requirements  SIP

amend  244  0246  Notifications  SIP

amend  244  0248  Recordkeeping Requirements  SIP

amend  244  0250  Reporting Requirements  SIP

adopt  216  0068  Simple and Standard Air Contaminant Discharge  SIP

     Permit Attachments

adopt  244  0239  General Duties to Minimize Emissions   

repeal  228  0611  Additional Requirements to Provide Heat Input   

repeal  228  0613  Monitoring of Hg Mass Emissions and Heat Input

      at the Unit Level   

repeal  228  0615  Monitoring of Hg Mass Emissions and Heat Input

      at Common and Multiple Stacks   

repeal  228  0617  Special Provisions for Measuring Hg Mass Emissions

      using the Sorbent Trap Monitoring Methodology   

repeal  228  0619  Procedures for Hg Mass Emissions   

repeal  228  0621  Initial Certification and Recertification Procedures   

repeal  228  0623  Quality Assurance and Quality Control Requirements   

repeal  228  0625  Specifications and Test Procedures for Total Vapor

      Phase Mercury CEMS   

repeal  228  0627  Quality Assurance and Operating Procedures for Sorbent

      Trap Monitoring Systems   

repeal  228  0629  Out of Control Periods and Adjustment for System Bias   

repeal  228  0631  Standard Missing Data Procedures for Hg CEMS   

repeal  228  0633    Missing Data Procedures for Sorbent Trap Monitoring Systems

repeal  244  0230    Accidental Release Program

repeal  244  0230    Table 3   

* SIP – this rule is part of the State Implementation Plan.

* Land use – DEQ State Agency Coordination Program considers this rule, program or activity is a land use program.

Statute implemented}  

ORS 468.020, 468A.025, 468A.035, 468A.040, 468A.050 and 468A.310  

Statutory or other legal authority}

ORS 468.020, 468A.025, 468A.035, 468A.040, 468A.050 and 468A.310

Other authority}

Supporting documents  ORS 183.335(2)(b)(C)

   Code of Federal Regulations

   Federal Register

Statement of fiscal and economic impact ORS 183.335 (2)(b)(E)

1.  Impacts on the general public

Indirect impact: The general public could be indirectly impacted by the proposed rule changes as large and small businesses pass along increased or decreased costs in the form of price changes for goods and services.

Direct impact: The general public would not be directly affected by the proposed rule changes.

2.  Impacts on small businesses with 50 or fewer employees. ORS 183.336

Indirect impact: Small businesses could be indirectly impacted by the proposed rule changes as other businesses pass along increased or decreased costs in the form of price changes for goods and services.

Direct impact: Small businesses might see increased or decreased costs due to the proposed rule changes and as follows:

1.  Align Oregon’s rules with recent changes to federal emission standards

a.  Adopt by reference new federal area source NESHAPs for gold mine ore processing and production, new federal major source NESHAP for electric utility steam generating units, new federal major source NESHAP for polyvinyl chloride and copolymers production and new federal NSPS for sewage sludge incineration units.

DEQ anticipates that there will be no fiscal and economic impacts as a result of adopting the new federal standards because the fiscal and economic impacts occurred when EPA adopted the rules. EPA has evaluated the fiscal and economic effects of their rules and lists those effects in the preambles to their regulations.

b.  Incorporate changes EPA made to the federal gasoline dispensing facility NESHAP.

DEQ anticipates that there could be a negative fiscal and economic impact as a result of adopting these changes because the changes extend the gasoline dispensing facility rules to facilities that dispense gasoline into “non-road vehicles” and “non-road engines” and because the newly affected gasoline dispensing facilities will be subject to Oregon’s more stringent, but existing, gasoline dispensing facility rules and permitting. DEQ cannot quantify this impact at this time because the available information does not indicate how many facilities would trigger control requirements or permitting. However, the majority of affected facilities have small tanks and aren’t likely to have gasoline throughputs that would trigger control requirements or permitting. Therefore, the fiscal and economic impact is not expected to be significant.

c.  Update the adoption by reference of previously adopted NESHAPs and NSPSs.

DEQ anticipates that there will be no fiscal and economic impacts as a result of updating previously adopted federal standards because the fiscal and economic impacts occurred when EPA adopted the rule amendments. EPA has evaluated the fiscal and economic effects of its rules and lists those effects in the preambles to its regulations.

d.  Remove monitoring, recordkeeping and reporting requirements in Oregon’s Utility Mercury Rule and replace them with references to the monitoring, recordkeeping and reporting requirements in the Electric Utility Steam Generating Unit NESHAP.

3.  Clarify and clean up rules

a.  Align the late fees for the registration and Air Contaminant Discharge Permit programs.

DEQ anticipates that there will be a positive fiscal and economic impact as a result of adopting this change because late fees would apply eight days after a source misses a deadline for submitting fees instead of immediately after the deadline, so some sources will avoid late fees altogether by paying fees within the grace period.

b.  Clarify the permitting requirements for metal fabrication and finishing operations.

DEQ anticipates that there will be no fiscal and economic impact as a result of adopting this change because it corrects an error made in a previous rulemaking. This change would not result in any new permittees or any permittees paying higher fees.

c.  Remove redundant general permit fee class assignments for halogenated solvent cleaners.

DEQ anticipates that there will be no fiscal and economic impact as a result of adopting this change because it would not decrease or increase the fees for halogenated solvent cleaners.

d.  Remove redundant gasoline dispensing facility control requirements in OAR 340 Division 232.

DEQ anticipates that there will be no fiscal and economic impact as a result of adopting this change because the gasoline dispensing facility requirements in Division 232 are redundant to the gasoline dispensing facility requirements in Division 244.

e.  Reassign crematories to General Air Contaminant Discharge Permit fee class one. (crematories were inadvertently assigned to fee class two in a previous rulemaking); and

DEQ anticipates that there will be no fiscal and economic impact as a result of adopting this change because it corrects a fee class assignment which DEQ inadvertently changed in a previous rulemaking and crematories have continued to pay class one fees.

f.  Repeal DEQ’s accidental release prevention rule.

DEQ anticipates that there will be no fiscal and economic impact as a result of adopting this change because it only removes a placeholder rule for the federal accidental release prevention rules, which are in place and would continue to apply to Oregon businesses.

3.  Impact on large businesses (all businesses that are not small businesses under 2 above)

Any fiscal and economic impacts on large businesses are expected to be the same as those estimated for small businesses.

4.  Impact on local government other than DEQ

Direct impact: Any direct fiscal and economic impacts on local governments that operate facilities subject to federal emission standards are expected to be the same as those estimated for small businesses.

Indirect impact: Local governments could be indirectly impacted by the proposed rule changes as large and small businesses pass along increased or decreased costs in the form of price changes for goods and services

Also, all Oregon cities and counties could be indirectly impacted by the requirement that businesses affected by new federal requirements obtain a permit. This is because businesses throughout the state are required to submit a Land Use Compatibility Statement with their permit application, and local governments process those Land Use Compatibility Statements. Some cities and counties charge a fee to complete the Land Use Compatibility Statement and, therefore, may have sufficient revenue to cover the added workload. Those cities that don’t charge a fee, or that don’t charge sufficient fees to cover their costs, may have new workload without additional revenue. DEQ does not have adequate information to estimate these fiscal impacts at this time.

5.  Impacts on DEQ

Direct impact: Implementing the federal rules will require DEQ to provide technical assistance, issue permits, perform inspections and issue formal enforcement actions against violators. This work will be implemented by existing staff, funded by revenue from permit fees. The rule amendments that exempt sources from permitting or lower fees will reduce net revenue, while the rule amendments that incorporate standards for previously unpermitted sources will increase net revenue. DEQ does not have adequate information to estimate the net change in revenue, but expects that it will not be significant.

Indirect impact: The indirect cost impacts on DEQ are expected to be the same as those estimated for small businesses.

Documents relied on for fiscal and economic impact

DEQ relied primarily on the Federal Register, the Code of Federal Regulations and the Oregon Revised Statutes in developing this rulemaking proposal. Copies of the documents relied upon in the development of this rulemaking proposal can be reviewed at DEQ’s office at 811 S.W. 6th Avenue, Portland, Oregon. Please contact Jerry Ebersole for times when the documents are available for review.

Advisory committee

DEQ did not hold an official advisory committee for this rulemaking because the rulemaking would primarily adopt federal regulations by reference.

Housing Cost

To comply with ORS 183.534, DEQ has determined that the requirement that facilities dispensing gasoline into “non-road vehicles” and “non-road engines” comply with the more stringent Oregon gasoline dispensing facility requirements and obtain a permit may have a negative impact on the cost of development of a 6,000 square foot parcel and the construction of a 1,200 square foot detached single-family dwelling on that parcel. The negative impact could occur if the cost of emission controls and permitting fees are passed through by permit holders providing products and services for such development and construction. The possible impact appears to be minimal. DEQ cannot quantify this impact at this time because the available information does not indicate whether the permit fees would be passed on to consumers and any such estimate would be speculative.

“It is the commission's policy to coordinate the DEQ's programs, rules and actions that affect land use with local acknowledged plans to the fullest degree possible.”  

 OAR 340-018

ORS 197.180

OAR 660-030

Land use considerations

To determine whether the proposed rules involve programs or actions that are considered a land-use program, DEQ considered the following.

•  The statewide planning goals for specific references. Section III, subsection 2 of the DEQ State Agency Coordination Program} document identifies the following statewide goals that relates to DEQ's authority:

 Goal  Title

 6  Air, Water and Land Resources Quality

 5  Open Spaces, Scenic and Historic Areas, and Natural Resources

 11  Public Facilities and Services

 16  Estuarian Resources

 19  Ocean Resources

•  OAR 340-018-0030 for programs or actions that relate to the proposed rules.

•  DEQ’s mandate to protect public health and safety and the environment.

•  Whether DEQ is the primary authority that is responsible for land use programs or actions in the proposed rules.

•  Present or future land uses identified in acknowledged comprehensive plans.

Determination

The following DEQ State Agency Coordination Program information applies to the proposed rules marked as Land Use under the 'Chapter 340 Action' section above

Planning Goal:    6. Air, Water and Land Resources Quality

Land Use activity:  4. Issuance of an Air Quality Contaminant Discharge Permit

DEQ will implement the proposed standards for major source categories through DEQ’s Title V Operating Permit program and the standards for non-major source categories through DEQ’s Air Contaminant Discharge Permit program.

DEQ’s statewide goal compliance and local plan compatibility procedures adequately cover the proposed rules. DEQ will implement these rules through the Air Contaminant Discharge Permit and Title V permitting programs. Currently, pursuant to EQC rules, cities and counties must provide a Land Use Compatibility Statement before DEQ issues these permits or approves a Notice of Construction.

Requirement  ORS 183.405

The state Administrative Procedures Act requires DEQ to review new rules within five years of the date the EQC adopts the proposed rules. Though the review will align with any changes to the law in the intervening years, DEQ based its analysis on current law.

Exemption

The following exemptions to the Administrative Procedures Act’s five-year review rule apply to some of the proposed rule revisions:

•  Amendments or repeal of a rule. ORS 183.405 (4)  

•  Rules that adopt federal laws or rules by reference. ORS 183.405(5)(b)

•  Rules adopted to correct errors or ommissions. ORS 183.405(d)  

Five-year rule review required

No later than June 26, 2017, DEQ will review the newly adopted rules required under ORS 183.405 (1) to determine whether:

•  The rule has had the intended effect.

•  The anticipated fiscal impact of the rule was underestimated or overestimated.

•  Subsequent changes in the law require that the rule be repealed or amended.

•  There is continued need for the rule.

DEQ will use available information to comply with the review requirement, as allowed under ORS 183.405 (2).

Joanie Stevens-Schwenger, 2013-02-20T16:34:00Z
Does this mean we haven't figured this out yet?

GEberso, 2013-02-22T14:51:00Z
It does take time for us to figure out if and how we are going to implement new federal requirements. Two examples are boiler MACT and RICE engines which are very complicated and affect a lot of sources. In addition, we don't want to be locked into implementing new federal standards that we don't have the expertise or the resourses to implement, such as federal standards that apply to out of state manufacturers that we don't have the ability to regulate.

Joanie Stevens-Schwenger, 2013-02-20T17:54:00Z
Does this mean that we will be requiring permits of facilities that have never had to get a permit before? We should be clear on how many new sources, but is not clear.

GEberso, 2013-02-22T14:58:00Z
This is a change that will stop source from automatically being subject to permitting once a federal NSPS requirement is adopted. This would include sources subject to the RICE NSPSs and any sources affected by future NSPSs. At this time we don't know how many sources are affected by the RICE NSPSs or any future NSPSs. We don't want them automatically pulled into our permitting program. Instead we want to adopt a state rule specifing how they will be handled by registration, permit, or other means.

Joanie Stevens-Schwenger, 2013-02-20T16:41:00Z
We've said this twice, but it is not explained how we are allowed to cherry pick the regulations we enforce. Need a bit of clarity there, since I'm confident that DEQ would not cherry pick.

GEberso, 2013-02-22T15:05:00Z
We are not allowed to cherry pick for Title V sources, but we are allowed to cherry pick for non-Title V sources. However, even with Title V sources we are allowed to minimally implement certain programs, such as the accidental release program, because we don't have the expertise and resources to implement the program and industry opposed giving us those resources. Also we are one of a few states that is implementing the area source NESHAPs, but currently we are not implementing all the area source NESHAPs; that is because of workload and resource concerns.

Joanie Stevens-Schwenger, 2013-02-20T16:59:00Z
I think the commenter may be referring to health affects not a delay in submitting comments. If it is environmentally important to issue these permits and DEQ delays it, then theoretically the public suffers adverse affects for another three years. Conversely, if there are insignificant health affects arising from the permit, it begs the question of why we are regulating these businesses at all.

GEberso, 2013-02-22T12:13:00Z
I have reworded the comment to make it clear what the comment is and have also reworded the response.

Joanie Stevens-Schwenger, 2013-02-20T17:18:00Z
This is not clear in the staff report and would be a good feature to call out.

GEberso, 2013-02-22T12:19:00Z
I have added similar wording near the top of page 5.

Joanie Stevens-Schwenger, 2013-02-20T17:56:00Z
Why not provide links to the documents? most people would prefer to look at them online.

GEberso, 2013-02-22T15:32:00Z
We can't make changes to this section without going out on public notice. However, your comment is noted and we will try to provide links to the FR, CFR, and the ORS in future rulemakings.